APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. John A. Woodcock, Jr., U.S. District Judge.
Peter T. Marchesi, with whom Cassandra S. Shaffer and Wheeler & Arey, P.A., were on brief, for appellants.
Michael J. Waxman for appellee.
Before Lynch, Chief Judge, Ripple[*] and Selya, Circuit Judges.
RIPPLE, Circuit Judge.
Robert Goguen is a former pretrial detainee at the Somerset County Jail (" SCJ" ). He brought this action alleging that various correctional officers at SCJ violated his rights under the First, Eighth, and Fourteenth Amendments by inflicting punishment on him without due process of law and by retaliating against him for filing grievances against members of SCJ's staff. The defendant officers and administrators moved for judgment on the pleadings, summary judgment on the merits, and also summary judgment on the basis of qualified immunity. The district court granted summary judgment to several defendants who had not participated personally in the alleged violations. With respect to the remaining defendants, the court concluded that there were genuine issues of material fact concerning the defendants' actions and motivations that precluded summary judgment. These remaining defendants timely appealed.
We conclude that the defendants' appeal must be dismissed for want of appellate jurisdiction. The defendants' arguments on appeal take issue with the district court's factual assessments and do not present a pure issue of law for this court's consideration. Consequently, following our holdings in Cady v. Walsh, 753 F.3d 348 (1st Cir. 2014), and Penn v. Escorsio, 764 F.3d 102 (1st Cir. 2014), we cannot entertain the defendants' appeal.
Between March and December 2011, Mr. Goguen was detained at the SCJ awaiting his trial on pending charges in state and federal courts. From March 15, 2011, until June 23, 2011, the SCJ housed Mr. Goguen in its E-pod, a general population area in which inmates are allowed some freedom of movement. In contrast, SCJ's A-pod, which houses inmates in administrative segregation, inmates in disciplinary segregation, and inmates who are classified as maximum security, imposes significantly greater restrictions. Mr. Goguen's allegations center on his repeated placement in A-pod, ostensibly for administrative segregation. We therefore discuss, in some detail, the conditions of confinement in A-pod.
Inmates in administrative segregation endure a significantly restrictive environment. While in administrative segregation, inmates are allowed out of their cells for one hour per day, five days per week, for recreation. " Recreation" takes place in a caged area that is approximately five feet wide by ten feet long. Inmates in administrative segregation leave their cells to shower three times per week; each inmate generally is allowed ten to fifteen minutes to shower. Once a week, inmates
in administrative segregation are allowed out of their cells to make a telephone call.
According to the defendants, any inmate housed in A-pod, whether placed there for administrative segregation, for disciplinary segregation, or because of their maximum-security classification, are strip searched every time they enter or leave their cells. All cells in A-pod are searched at least once per day, compared to cells in E-pod, which are searched on a monthly basis. Additional cell searches also may be conducted when SCJ staff members receive information that an inmate possesses contraband. When a cell search is conducted, the inmate housed in that cell is strip searched prior to being removed from the cell.
When an inmate is taken to administrative segregation, all of the inmate's property is put into a bag and taken to the property room. If an inmate in administrative segregation requests his legal materials, arrangements are made to provide the legal materials to the inmate when the property officer is on duty. When an inmate is placed back in general population, the inmate's property is returned by the property officer.
Placement in administrative segregation is reviewed within seventy-two hours by the classification supervisor. SCJ policy also requires that, within the same time frame, an inmate be given notice of the reason for his placement in administrative segregation and of the date and time that the committee will hold a hearing to review the administrative-segregation placement. Another review of administrative-segregation status is done within seven days (every Friday) to determine if continued placement is needed; review can be performed by any day shift commander.
1. June 23 Disciplinary Charges
The incidents relevant to Mr. Goguen's claims begin on June 23, 2011, when Officer Jennifer Gilblair searched Mr. Goguen's cell in E-pod for an envelope. Officer Gilblair asked Officer Craig Meunier not to let Mr. Goguen upstairs while she was searching the cell. Mr. Goguen was allowed to watch the cell search from downstairs. Based on the configuration of the SCJ, however, the district court concluded that one actually cannot watch a cell search from downstairs. The defendants dispute whether the district court reasonably could have reached this conclusion based on the evidence before it. Officer Gilblair's search uncovered commissary items including one plastic soap dish, one bar of soap, one plastic bowl, one white-colored shower shaver, and one bottle of shampoo. It is undisputed that, due to a lack of funds, Mr. Goguen could not have purchased these items; consequently, Officer Gilblair wrote a disciplinary report and a notice of infraction for a violation of C--04 of the SCJ Inmate Discipline Policy, " Giving, Receiving, or Swapping."  Mr. Goguen maintains that there was no legitimate reason to search his cell for an envelope because legal envelopes are supplied for free by the commissary.
According to Officer Meunier, Mr. Goguen responded to the search of his cell by arguing and swearing at him. Officer Meunier therefore wrote a disciplinary report concerning Mr. Goguen's conduct, in which he charged Mr. Goguen with a violation of B--24, " Interfering," and B--12, " [P]rovocation."  Mr. Goguen denies that
he argued with or swore at the officers involved in the search of his cell; instead, he maintains that Officer Gilblair yelled and cursed at him. Mr. Goguen contends that these charges were falsely brought by Officers Meunier and Gilblair. Notably, Mr. Goguen attributes Officer Gilblair's actions to the fact that, just before the search, he had been a witness for another inmate and " wrote a report against Gilblair for her misconduct . . . or harassment."  Following this incident, Mr. Goguen was placed in administrative segregation in A-pod on order of then-Sergeant Keith Plourd.
A non-defendant officer, Officer Ducharme, was assigned to investigate the giving-receiving-swapping charge and spoke to Mr. Goguen on the day of the incident. He informed Mr. Goguen of the alleged violation and asked for Mr. Goguen's side of the story. Officer Ducharme provided Mr. Goguen a notice of infraction, which informed him of the charge. Mr. Goguen admitted that the items found in his cell were not issued to him, but claimed that they either were left in the cell, given to him by another inmate, or left behind in the shower; he claimed that he was unaware that he could not have them.
Officer James French was assigned to investigate the interfering-provocation charge. He supplied Mr. Goguen with a notice, informed Mr. Goguen of the charge, and asked for his side of the story.
The standard notice informs inmates that they will receive an opportunity to respond or to explain the alleged violation to a disciplinary hearing officer within seven days; the hearing officer considers whether the inmate is guilty and determines the appropriate sanction. The notice further states that the inmate has the right to call witnesses and to question them, provided the witnesses are identified and the questions are presented to the hearing officer prior to the hearing date.
Notices and reports of infractions are forwarded to Special Projects Officer Gary Crafts. Officer Crafts reviews each matter and then determines how the charge should proceed. For instance, he may determine that the charge should be changed, dismissed, or steered toward an informal resolution. He also may refer the matter for further investigation or for a disciplinary hearing. Officer Crafts referred both of Mr. Goguen's June 23 infractions for disciplinary hearings. Mr. Goguen identified his witnesses by description and cell location, but not by name. He also did not put in writing the questions that he wanted witnesses to answer. As a result, neither Officer Crafts, nor the hearing officer, pursued any witness statements on Mr. Goguen's behalf.
A hearing was conducted on July 1 by Officer Eddie Jacques. At the hearing, Officer Jacques heard Mr. Goguen's testimony, viewed still photos, reviewed the officers' incident reports, and found Mr. Goguen guilty of " Giving, Receiving, or Swapping," for which he received a verbal reprimand. Officer Jacques also found Mr. Goguen guilty of " Interfering" and " Provocation," for which he received a verbal
reprimand and a $10 fine. Officer Eddie Jacques stated in his reports that he had assessed zero days of disciplinary segregation. Mr. Goguen appealed the decision concerning interfering and provocation to the administrator of SCJ, Major David Allen, but the decision was affirmed.
While these proceedings were ongoing, Mr. Goguen stayed in A-pod. His placement first was reviewed by non-defendant Lieutenant Campbell on June 26, 2011. Lieutenant Campbell determined that Mr. Goguen should remain in administrative segregation, and Mr. Goguen received a notice that he would be kept in administrative segregation and his placement again would be reviewed on July 1, 2011.
On July 1, 2011, a hearing was held to review Mr. Goguen's administrative-segregation status. Lieutenant Darlene Bugbee was the hearing officer, and Officer French and non-defendant Officer Welsh served as committee members. Mr. Goguen attended and testified at the hearing, after which the committee determined that Mr. Goguen should remain in administrative segregation until a classification committee could review his security status.
On July 6, 2011, another administrative segregation hearing occurred. This time, Lieutenant Bugbee was the hearing officer; Sergeant Plourd and Officer Meunier served as committee members. Following the hearing, at which Mr. Goguen testified, the committee determined that he should be removed from administrative segregation because classification had reviewed Mr. Goguen's status and had determined that he still should be classified as a medium-security inmate. Mr. Goguen therefore was released from administrative segregation and returned to E-pod, where he remained until he was transported to the Penobscot County Jail on July 10, 2011.
2. July 15, 2011 Incident
After Mr. Goguen returned to SCJ, Mr. Goguen again was placed in A-pod on July 15, 2011, as a result of a dispute concerning his bunk assignment. During cell reassignments, Mr. Goguen was assigned an upper bunk. Mr. Goguen, however, told Officer Michael Rizzo that he needed a lower bunk. When Officer Rizzo inquired of the medical department whether Mr. Goguen had a bottom-bunk restriction, the medical department responded that he did not. The parties give vastly different accounts of the events that followed. According to the defendants, Officer Rizzo ordered Mr. Goguen to move to the upper bunk, but Mr. Goguen refused and told Officer Rizzo to send him to A-pod, which Officer Rizzo did. Officer Rizzo also wrote a disciplinary report and a notice of infraction for a violation of B--11, " Order, Refusing to obey."  In his deposition, Mr. Goguen denied that he had been ordered to take an upper bunk; he testified that, after Officer Rizzo called the medical department and discovered that Mr. Goguen did not have a medical restriction for a lower bunk, Officer Rizzo " slammed [him] against the wall," handcuffed him, and escorted him to A-pod. The B-11 infraction eventually was dismissed.
Mr. Goguen's placement in administrative segregation was reviewed by Lieutenant Campbell on July 18, 2011. He determined that Mr. Goguen should remain in administrative segregation. Mr. Goguen received notice of the decision and notice
that his placement would be reviewed on July 22, 2011. On July 22, 2011, a hearing was held to review Mr. Goguen's administrative segregation status; Lieutenant Campbell served as the hearing officer, and non-defendant Officers Jewell and Madore served as committee members. At the hearing, Mr. Goguen did not dispute that he told Officer Rizzo that he should be taken to A-pod if he was not going to be assigned a lower bunk; he does dispute that he was disruptive, that he argued, and that he refused an order, which were the bases for his transfer to A-pod. The hearing committee determined that Mr. Goguen should remain in administrative segregation because of his habit of " arguing, wanting [his] own way, [and being] non-cooperative."  On July 28, Mr. Goguen was removed from administrative segregation and moved back to E-pod because he was " [r]eady to follow orders" and was placed in an upper bunk.
Shortly after Mr. Goguen returned to E-pod, Officer Rizzo approached Mr. Goguen and stated: " 'I will make sure that you do not come back to this block. I will do whatever it takes in my personal power to make sure you spend the rest of your time in A[-]pod. I don't care who I have to talk to.'" 
3. August 31/September 1, 2011 Incidents
On August 31, 2011, Mr. Goguen was on a telephone call with a federal magistrate judge about another lawsuit. Major Allen interrupted the call and insisted that Mr. Goguen hang up the telephone. When Mr. Goguen tried to explain that he was on the telephone with a federal magistrate judge, Major Allen " took the phone from [Mr. Goguen's] hand, hung the phone up, told [Mr. Goguen] to put [his] hands behind [his] back, [and] [Mr. Goguen] was handcuffed, shackled and escorted to A[-]pod."  Once there, Major Allen informed him that he (Mr. Goguen) would not be threatening other officers with lawsuits under his watch. When it was determined that Mr. Goguen in fact had been on the telephone with a federal magistrate judge, Mr. Goguen was escorted back to the telephone to resume the call.
Also on August 31, Officer Rizzo wrote a disciplinary report and a notice of infraction for a violation of B--13, " Provocation," for arguing. These charges were later dismissed. The record does not contain either the report or the dismissal. The record does contain, however, an " Administrative Segregation Status Placement" dated August 31, 2011. According to that document, Mr. Goguen was placed in segregation by Sergeant Plourd for " continually arguing with Staff in the performance of their duties" and " threatening Staff with lawsuits."  The following day, however, Lieutenant Bugbee reviewed the placement and removed Mr. Goguen from A-pod because Major Allen had " advise[d]" that Mr. Goguen did " not pose [a] threat to security." 
Mr. Goguen remained in E-pod for a little over three and one-half hours. At that time, officers were conducting a count of the inmates. When officers reached Mr. Goguen's cell, his back was facing the officers, and he appeared to be urinating. Mr. Goguen later testified that he in fact was urinating during the count. Officer Rizzo wrote a disciplinary report and a notice of infraction for a violation of A--05, " Count."  Officer Rizzo also wrote up Mr. Goguen for violations of B--19, " Threatening," and B--13, " Provocation," for swearing and calling Officer Rizzo names. Mr. Goguen again was placed in A-pod.
On September 1, 2011, Officer Gilblair notified Mr. Goguen of this infraction and asked for Mr. Goguen's version of the events. On September 8, 2011, Mr. Goguen received notice that a disciplinary hearing for the incident was scheduled for September 13, 2011. Officer Crafts presided at the hearing, at which Mr. Goguen testified. As part of this hearing, Officer Crafts reviewed answers to written questions posed by Mr. Goguen to his cell mate. Following the hearing, Officer Crafts found Mr. Goguen guilty of the count violation, but not guilty of the threatening and ...