Stow v. McGrath et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Weston J. Stow
v. Civil No. 17-cv-088-LM
Opinion No. 2019 DNH 044
Robert P. McGrath et al.1
O R D E R
Pro se plaintiff Weston J. Stow, a New Hampshire Department
of Corrections (“DOC”) inmate, asserts a number of claims
against defendant DOC employees. Defendant New Hampshire State
Prison (“NHSP”) Unit Manager Robert McGrath has filed a motion
(doc. no. 150) to dismiss several of the claims against him.
For the reasons that follow, McGrath’s motion to dismiss is
denied.
Background2
Stow alleges that in early 2016, he was incarcerated at the
NHSP Special Housing Unit (“SHU”), and that McGrath was the SHU
1The defendants in this action are New Hampshire State
Prison (“NHSP”) Unit Manager Robert P. McGrath, NHSP Lt. Leo
Lirette, NHSP Sgt. Edward Hardy, and NHSP Education Department
employee John Perkins.
2As construed in the October 13, 2017 Report and
Recommendation (doc. no. 65), Stow’s complaint includes 13
claims, some with sub-parts. In the instant motion, Defendant
McGrath seeks dismissal only of Claims 2(a), 2(c)(ii), and
2(c)(iii). The facts set forth in this section are limited to
those that are relevant to those claims.
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Unit Manager. At that time, Stow was taking daily prescription
heart medicine. In February 2016, Stow’s heart medication ran
out. Stow has alleged that the medication was not timely
refilled because no SHU officer picked up the prescription from
the NHSP on the weekend.
Stow complained about the failure to timely refill his
prescription through the DOC’s administrative grievance process.
Stow alleges that McGrath was offended by Stow’s pursuit of
administrative complaints concerning his prescription refills.
Stow states that as a result of his administrative
complaints, NHSP Maj. Jon Fouts investigated the issue and
instituted procedures to ensure that no further lapse in
necessary daily medication would occur at SHU. Shortly
thereafter, McGrath told Stow: “You made a big mistake, if I get
a clean shot at you I’m going to take it.” Stow believes that
McGrath made that statement in response to what Stow presumes
were negative consequences McGrath suffered for having allowed
Stow’s medication to lapse.
Stow further claims that, shortly after that incident,
McGrath and other DOC officers arranged to have Stow transferred
from the NHSP in Concord to the Northern New Hampshire
Correctional Facility (“NCF”) in Berlin. Stow alleges that his
transfer to NCF was made in retaliation for his administrative
complaints about his untimely medication refills and his
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complaints about other conditions of his confinement, including
complaints about the ventilation system at SHU.
As to those facts, Stow has asserted the following claims
against McGrath, which are set forth in the October 13, 2017
Report and Recommendation (doc. no. 65) (“October 2017 R&R”) as
the following subparts of Claim 2:
2. Defendant McGrath threatened Stow with bodily harm
by stating “You’ve made a big mistake, if I get a
clean shot at you I’m going to take it,” in
retaliation for Stow’s administrative complaints about
medication refill procedures and inadequate
ventilation on his housing unit, in violation of:
a. Stow’s First Amendment rights to free speech
and to petition the government for a redress of
grievances, rendering defendant liable for
damages and injunctive relief under 42 U.S.C.
§ 1983;
. . . .
c. state common law, rendering defendant liable
for damages for:
. . . .
ii. malfeasance in public office, and
iii. misfeasance in public office.
October 2017 R&R, at 1.
Discussion
McGrath moves to dismiss Claim 2(a) on three grounds: (1)
failure to state a claim upon which relief can be granted, see
Fed. R. Civ. P. 12(b)(6); (2) qualified immunity; and (3)
Eleventh Amendment sovereign immunity, to the extent Claim 2(a)
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seeks damages from McGrath in his official capacity. In
addition, McGrath argues that because Claim 2(a) is subject to
dismissal, Claims 2(c)(ii) and (iii), which arise under state
law, should be dismissed for lack of supplemental jurisdiction,
see 28 U.S.C. § 1367.
I. Eleventh Amendment Sovereign Immunity
McGrath argues that to the extent Stow is asserting Claim
2(a) against him in his official capacity, the claim is barred
by the Eleventh Amendment, as Stow seeks only damages for that
claim. The Eleventh Amendment bars claims for damages asserted
by private parties against state officials in their official
capacities. See Davidson v. Howe, 749 F.3d 21, 27 (1st Cir.
2014).
In this case, however, no claims for damages have been
served against McGrath in his official capacity. See Jan. 23,
2018 Order (doc. no. 101) (approving October 2017 R&R).
Because, in Claim 2(a), Stow does not seek damages from McGrath
in his official capacity, the motion to dismiss is denied to the
extent it asserts a sovereign immunity defense to a damages
claim.
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II. Failure to State a Claim
McGrath argues that Claim 2(a) should be dismissed for
failure to state a claim upon which relief can be granted
because Stow has not adequately alleged facts to support a First
Amendment retaliation claim against him. When ruling on a Rule
12(b)(6) motion, the court must “‘accept as true all well-
pleaded facts alleged in the complaint and draw all reasonable
inferences therefrom in the [plaintiff’s] favor.’” Lemelson v.
Bloomberg Ltd. P’ship, 903 F.3d 19, 23 (1st Cir. 2018) (citation
omitted). Then, when focusing “on the non-speculative, non-
conclusory facts and reasonable inferences implied by those
facts, [the court must] ask whether it is plausible, as opposed
to merely possible, that [the] plaintiff’s complaint narrates a
claim for relief.” Id. (citation omitted).
In Claim 2(a), Stow alleges that McGrath’s threat about
taking a clean shot constituted an act of retaliation against
Stow in response to Stow’s exercise of his First Amendment right
to file administrative grievances. To state a claim for
retaliation for the exercise of First Amendment rights, an
inmate must allege: (1) that the conduct which led to the
retaliation was protected by the First Amendment; (2) that he
suffered an adverse action at the hands of the prison officials;
and (3) that there was a causal link between the exercise of his
First Amendment rights and the adverse action taken. See Hannon
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v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). An adverse act taken
in response to protected conduct is not de minimis, if it would
deter an individual of ordinary firmness from exercising First
Amendment rights. See Starr v. Dube, 334 F. App’x 341, 342 (1st
Cir. 2009). Determining whether a plaintiff alleges an adverse
act that would deter a person of ordinary firmness “is an
objective inquiry.” See Thaddeus-X v. Blatter, 175 F.3d 378,
398 (6th Cir. 1999).
Defendant does not challenge plaintiff’s allegations
regarding the first or the third elements of his retaliation
claim. Rather, he argues that because plaintiff has alleged
nothing more than a threat, he has failed to adequately allege
the second element of his claim, as a threat does not constitute
an “adverse act” for purposes of a First Amendment retaliation
claim.3
3In his motion to dismiss, the defendant treats Claim 2(a)
as one referencing a threat of bodily harm. In plaintiff’s
objection (doc. no. 151) to the motion to dismiss, plaintiff
contends that he interpreted McGrath’s threat to take a shot at
him not as a threat that McGrath would shoot him or cause him
physical harm, but as a threat that McGrath would take a shot at
“ripping [him] out of [his] high paying kitchen job [at the NHSP
in Concord] and transferring him to [NCF in] Berlin.” Pl.’s
Mem. of Law (doc. no. 151-1, at 2). Notwithstanding plaintiff’s
current characterization of how he understood the threat, the
claim the court has allowed to proceed alleges a threat of
bodily harm. Plaintiff may file a motion to amend the complaint
if he seeks to alter the nature of the threat that he alleges
underlies Claims 2(a), 2(c)(ii), and 2(c)(iii).
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The dispositive question for the court’s consideration is
whether a threat can be an adverse action for the purposes of a
First Amendment retaliation claim in a prison setting. There is
abundant, well-reasoned, persuasive authority to support a
determination that a threat may be sufficient to satisfy the
adverse-action element of a First Amendment retaliation claim.
See, e.g., Santiago v. Blair, 707 F.3d 984, 992 (8th Cir. 2013)
(threat that officer would kill plaintiff if he filed more
grievances was not de minimis); Hill v. Lappin, 630 F.3d 468,
475 (6th Cir. 2010) (threat of transfer to lock-down unit was
adverse act sufficient to support viable retaliation claim);
Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (“mere
threat of harm can be an adverse action, regardless of whether
it is carried out because the threat itself can have a chilling
effect”); Pittman v. Tucker, 213 F. App’x 867, 870 (11th Cir.
2007) (per curiam) (threat that prison officials would “do
‘something drastic’ if [the prisoner] continued to file
grievances,” which “could easily be interpreted by an inmate as
a threat of physical violence, either directly or thru [sic]
deliberate inattention,” was not de minimis). The cases cited
by McGrath are inapposite, unpersuasive, or inconsistent with
the pertinent standard for evaluating whether an adverse act is
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de minimis, established in cases including Starr, 334 F. App’x
at 342, and Thaddeus-X, 175 F.3d at 398.4
The threat of bodily harm on which Claim 2(a) was allowed
to proceed is sufficient to satisfy the adverse act element of
Stow’s First Amendment retaliation claim. Because defendant’s
Rule 12(b)(6) argument rests solely upon plaintiff’s purported
failure to adequately allege the adverse act element of his
retaliation claim, McGrath’s motion to dismiss should be denied
to the extent it rests on Rule 12(b)(6).
4For example, McGrath cites Ayotte v. Barnhart, 973 F. Supp.
2d 70, 94 (D. Me. 2013), in arguing that a threat alone cannot
support the adverse action element of a retaliation claim.
Barnhart’s discussion of whether threats alone suffices to
support a retaliation claim appears in dicta, as the prisoner
there had in fact alleged “more” than a mere threat. The court
allowed the First Amendment retaliation claim to proceed in
Barnhart because the alleged adverse action, consisting of
“verbal abuse, threat, and two strip-searches,” was “objectively
more than de minimis.” Id. at 82. Furthermore, Barnhart’s
cited reasoning, that inmates simply must put up with more than
ordinary citizens, is based on Thaddeus-X, 175 F.3d at 398, in
which the court emphasized that case-specific facts matter:
“while certain threats or deprivations are so de minimis that
they do not rise to the level of being constitutional
violations, this threshold is intended to weed out only
inconsequential actions,” and “[r]etaliation against a prisoner
is actionable if it is capable of deterring a person of ordinary
firmness from exercising his or her right to access the courts.”
The only two appellate court cases cited by McGrath, Gaut v.
Sunn, 810 F.2d 923 (9th Cir. 1987) (per curiam) (threat was
insufficient to state viable Eighth Amendment claim), and Hudson
v. Univ. of Tex. Med. Branch, 441 F. App’x 291 (5th Cir. 2011)
(per curiam), are distinguishable and unpersuasive as Gaut is an
Eighth Amendment case, and Hudson did not apply the applicable
“ordinary firmness” standard, cf. Thaddeus-x, 175 F.3d at 398,
in deciding whether the threats were actionable or de minimis.
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C. Qualified Immunity
Qualified immunity protects state officials from suit
unless their “actions violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Escalera-Salgado v. United States, 911 F.3d 38, 41 (1st
Cir. 2018) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). However, McGrath’s invocation of qualified immunity
consists of nothing more than a recitation of legal principles
and this: “At the very least, Stow has failed to allege any
clearly-established constitutionally-protected right in Claim
2(a) and, for that reason, McGrath is . . . entitled to
qualified immunity from personal liability.” Def.’s Mot. to
Dismiss (doc. no. 150, at 6).5 However, “because [McGrath] does
not develop his qualified immunity defense with sufficient
specificity and detail, the defense is waived” for purposes of
McGrath’s motion to dismiss. Latimore v. Trotman, No. 14-13378-
MBB, 2017 WL 3623159, at *10, 2017 U.S. Dist. LEXIS 134659, at
*27 (D. Mass. Aug. 23, 2017); see also Pomponio v. Town of
Ashland, No. 15-cv-10253-IT, 2016 WL 471285, at *5, 2016 U.S.
5McGrath says nothing about qualified immunity in his reply
(doc. no. 154) to Stow’s objection.
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Dist. LEXIS 14366, at *14 (D. Mass. Feb. 5, 2016) (rejecting
qualified-immunity defense asserted in motion for judgment on
the pleadings where “[d]efendants only [made] a general claim of
qualified immunity” (citing Jordan v. Carter, 428 F.3d 67, 74-75
(1st Cir. 2005) (rejecting qualified immunity where defendant
put forth “generic argument” in support of motion to dismiss))).
In short, McGrath has waived his qualified immunity defense
for purposes of a motion to dismiss, by failing to invoke it
with sufficient specificity and detail. Accordingly, McGrath’s
motion to dismiss is denied to the extent it rests upon a
qualified immunity defense asserted at the pleading stage.
D. Supplemental Jurisdiction
McGrath asks the court to dismiss Claims 2(c)(ii) and (iii)
on grounds that the court lacks supplemental jurisdiction over
those state-law claims. See 28 U.S.C. § 1367. However, as the
court declines to dismiss Claim 2(a), which is the federal claim
that provides supplemental jurisdiction for plaintiff’s state-
law claims, see id., the court may continue to exercise
supplemental jurisdiction over the state law claims.
Accordingly, McGrath’s motion to dismiss is denied as to Claims
2(c)(ii) and (iii).
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Conclusion
For the foregoing reasons, defendant Robert McGrath’s
motion to dismiss (doc. no. 150) is denied.
SO ORDERED.
______________________________
Landya McCafferty
United States District Judge
March 14, 2019
Cc: Weston Stow, pro se
Lynmarie C. Cusack, Esq.
Seth Michael Zoracki, Esq.
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