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Perry v. Spencer

United States District Court, D. Massachusetts

September 30, 2016

LUIS S. SPENCER, in his official and individual capacities, THOMAS DICKHAUT, in his individual capacity, ANTHONY MENDONSA, in his official and individual capacities, JAMES SABA, in his official and individual capacities, ABBE NELLIGAN, in her individual capacity, CAROL MICI, in her individual capacity, KRISTIE LADOUCER, in her individual capacity, THOMAS NEVILLE, in his official and individual capacities, PATRICK TOOLIN, in his individual capacity, Defendants.



         Plaintiff Jwainus Perry is a prisoner in the custody of the Massachusetts Department of Corrections (DOC); defendants are officials and employees of the DOC.[2] This Order addresses Count I of the second amended complaint (#51), the only count that survived defendants' motions to dismiss (#77), where Perry claims that in violation of 42 U.S.C. § 1983 he was unlawfully confined in non-disciplinary segregation for an unreasonable time without adequate process or legitimate purpose in violation of his Fifth and Fourteenth Amendment due process rights. (#51 ¶ 186.)

         Defendants' motion for summary judgment has been fully briefed. (##100-102, 110-111, 115, 117.) For the reasons set out below, the court finds that defendants are entitled to qualified immunity, therefore, defendants' motion is ALLOWED and judgment is to enter for defendants.

         I. Background.

         Unless otherwise noted, the facts set out in this Order are not in dispute. Since 2004, Perry has been an inmate incarcerated with the DOC, sentenced to life without parole for first degree murder. (#102 ¶¶ 1-2.) Defendants assert that in 2010, after authorities received information that indicated that Perry was a danger to other inmates, he was placed on “awaiting action” status in a segregation unit, and remained there “pending investigation, pending classification, and then pending an out-of-state placement.”[3] (#102 at 6.) Perry first was housed in a segregation unit at the Souza-Baranowski Correctional Center (SBCC) in Shirley, Massachusetts and then transferred to another segregation unit at the Massachusetts Correctional Institution (MCI) at Cedar Junction in Walpole, Massachusetts, for a total of approximately fifteen consecutive months (except for a ten-day break while he was in the health services unit after going on a hunger strike to protest being held in segregation for so long). After fifteen months in segregation, he was transferred to a prison in Connecticut for about six months, and then, upon his return to Massachusetts, was housed in a segregation unit at MCI-Cedar Junction again for an additional period of about five months.[4]

         II. Summary Judgment Standard.

         The purpose of summary judgment is “to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.” Tobin v. Federal Express Corp., 775 F.3d 448, 450 (1st Cir. 2014) (internal quotations marks and citation omitted). “[A] court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is inappropriate “if the record is sufficiently open-ended to permit a rational fact finder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire District, 741 F.3d 295, 301 (1st Cir. 2014).

         The moving party bears the initial burden of asserting the absence of a genuine issue of material fact and “support[ing] that assertion by affidavits, admissions, or other materials of evidentiary quality.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003) (citations omitted). A genuine issue of fact exists where a fact finder could find in favor of the non-moving party, “while material facts are those whose existence or nonexistence has the potential to change the outcome of the suit.” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (internal quotations marks and citation omitted). “Once the moving party avers the absence of genuine issues of material fact, the non-movant must show that a factual dispute does exist, but summary judgment cannot be defeated by relying on improbable inferences, conclusory allegations, or rank speculation.” Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006) (internal quotation marks and citation omitted).

         In determining whether summary judgment is proper, evidence is considered “in the light most favorable to the non-moving party” and “all reasonable inferences” are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “‘Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (further internal quotation marks omitted)).

         III. Law.

         A. Due Process Claim.

         The sole claim in this case is “that Perry was unlawfully confined in non-disciplinary segregation for an unreasonable time without adequate process and for no legitimate purpose.”[5](Order on Defendants' Motions to Dismiss #77 at 4-5.) “The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In the context of prisoners' rights, the Supreme Court has determined “that the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement.” Wilkinson, 545 U.S. at 221 (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). That having been said, the Court has recognized “that a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations, subject to the important limitations set forth in Sandin v. Conner.” Wilkinson, 545 U.S. at 222 (citation omitted).

         In Sandin, the Court eschewed the approach adopted in Hewitt v. Helms, 450 U.S. 460 (1983) of examining the mandatory language of prison regulations in order to determine if a liberty interest had been created: “[W]e believe that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483 (1995); Dominique v. Weld, 73 F.3d 1156, 1159 (1st Cir. 1996) (“In Sandin. . ., the Court criticized its former precedent under which courts examined the language in state statutes and regulations to determine whether a liberty interest was created”). Instead, the Court refocused on “the nature of the deprivation, ” concluding

we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Sandin, 515 U.S. at 481, 483 (internal citations omitted); Wilkinson, 545 U.S. at 222.[6]

         B. Qualified Immunity.

         “Qualified immunity protects government officials from trial and monetary liability unless the pleaded facts establish (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Marrero-Mendez v. Calixto-Rodriguez, - F.3d. -, No. 14-2030, 2016 WL 3902635, at *3 (1st Cir. July 19, 2016) (internal citations and quotation marks omitted). Here, defendants argue they are entitled to the protection afforded by the doctrine of qualified immunity:

‘[A] government official sued under § 1983 is entitled to qualified immunity unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.' Carroll v. Carman, ___ U.S. ___, 135 S.Ct. 348, 350, 190 L.Ed.2d 311 (2014) (per curiam). ‘This doctrine “gives government officials breathing room to make reasonable but mistaken judgments, ” and “protects all but the plainly incompetent or those who knowingly violate the law.”' Id. (quoting Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)) (internal quotation marks omitted).

Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014); Stamps v. Town of Framingham, 813 F.3d 27, 33-34 (1st Cir. 2016) (“‘The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' Mullenix v. Luna, - U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam)” (further internal citation and quotation marks omitted)).

         The First Circuit recently reviewed this doctrine and said:

This court adheres to a two-step approach to determine whether a defendant is entitled to qualified immunity: ‘We ask “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly established' at the time of the defendant's alleged violation.”' Mlodzinski [v. Lewis], 648 F.3d [24], 32 [(1st Cir. 2011)] (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009)). The second prong, in turn, has two elements: ‘We ask (a) whether the legal contours of the right in question were sufficiently clear that a reasonable officer would have understood that what he was doing violated the right, and (b) whether in the particular factual context of the case, a reasonable officer would have understood that his conduct violated the right.' Id. at 32-33.

Stamps, 813 F.3d at 33-34; McCue v. City of Bangor, Maine, - F.3d -, No. 15-2460, 2016 WL 5349730, at *7 (1st Cir. Sept. 26, 2016); Miranda-Rivera v. Toleda-Davila, 813 F.3d 64, 72 (1st Cir. 2016). “If either of the two prongs is not met - i.e., if the facts do not show a constitutional violation or the right in question was not clearly established - the officer is immune. Either prong may be addressed first, depending on the circumstances in the particular case at hand.” Marrero-Mendez, 2016 WL 3902635, at *3 (internal citation and quotation marks omitted); Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir. 2010) (“These two prongs of the analysis need not be considered in any particular order, and both prongs must be satisfied for a plaintiff to overcome a qualified immunity defense”).

         With regard to the first prong, “[t]he test for a procedural due process violation requires the plaintiffs to show first, a deprivation of a protected ... interest, and second, a denial of due process.” Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 30 (1st Cir. 2008); Hudson v. MacEachern, 94 F.Supp.3d 59, 69 (D. Mass. 2015) (citing Wilkinson, 545 U.S. at 221) (“In order to state a claim for a procedural due process violation, a plaintiff must point to an interest in life, liberty, or property of which []he has been denied”). Thus one circles back to the test set out above in Sandin, 515 U.S. at 481, 483: regarding prisoners' rights, “[a] liberty interest is defined as a change that creates an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Schofield v. Clarke, 769 F.Supp.2d 42, 48-49 (D. Mass. 2011) (internal citation and quotation marks omitted); Tyree v. Weld, No. CIV. 93CV12260-NG, 2010 WL 145882, at *7 (D. Mass. Jan. 11, 2010) (“ Whether a restrictive condition imposed on a prisoner implicates a liberty interest depends upon whether the restraint imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” (internal citation and quotation marks omitted)). That said,

It is well established that the Constitution does not guarantee that a prisoner will be placed in any particular prison. Moreover, an inmate does not possess a protected liberty interest in preventing a transfer to a more restrictive form of confinement. Neither does state law provide a protected liberty interest with respect to such transfers. Indeed, the substantial deference given to prison officials in the discretionary exercise of their duties includes decisions regarding the placement and transfer of prisoners within the correctional system.

Schofield, 769 F.Supp.2d at 48-49 (internal citations and quotation marks omitted).

         IV. Facts.

         A. Conditions in the Segregation Units.

         Perry asserts that during the 611 days he was in an SMU he was alone in a windowless cell for either 23 or 24 hours most days. (#110 ¶ 72.) SMU cells had doors comprised of bars that were four inches apart. Each cell also had a separate solid steel door that could be closed. If the solid door was closed, “Perry could not even see other people or speak to other inmates through the cell doors.” Id. Perry asserts that his mental health records show that he was placed on “solid door status, ” meaning that the solid door was closed, and that the superintendents approved the status. He also claims that “his mental health files note that solid door status was, at times, contraindicated and yet still used.”[7] Id.

         The rules of the SMU provide that inmates can leave their cells for one hour, five days a week, in order to exercise in an outdoor cage which is exposed to the elements. (#102 ¶¶ 71, 72; #110 ¶¶ 71, 72.) Inmates are separated in their cages so they cannot have contact. Id. Defendants say that inmates can also exercise in their cells but Perry disputes this because he says the cells are too small.[8] (#102 ¶ 71; #110 ¶ 71.) With a few exceptions, whenever inmates leave their cells they are under “a hands on escort” by two staff members, and they are handcuffed behind the back and in leg irons. (#102 ¶ 79.)

         With exceptions for personal and legal visits, showers, medical and mental health appointments and occasional barber appointments, SMU inmates spend the remainder of their time in their cells. (#110 ¶ 72.) Personal visits are limited to two one-hour non-contact visits each week. (#102 ¶ 73; #110 ¶ 73.) Legal visits are unlimited. Id. SMU inmates have the opportunity to shave and shower three times a week, and Perry states that laundry services were offered “oftentimes one time per month, ” which was less than in general population, which is twice a week. (#102 ¶ 81; #110 ¶ 81.) Inmates are permitted two personal calls for a total of fifteen minutes per week and unlimited attorney calls, although Perry states that the process for making attorney calls was troublesome and he had difficulty calling his attorney. (#102 ¶ 85; #110 ¶ 85.)

         While SMU inmates are served the same food as general population inmates, they eat alone in their cells. (#102 ¶ 72; #110 ¶ 72.) Meals are served “via the cell food slot, ” that is, staff slide trays into each cell through a slot in the door. (#102-26 at 2.) Fewer canteen items are available to SMU inmates compared to general population inmates. (#102 ¶ 74; #110 ¶ 74.)

         While in the SMU, inmates are unable to participate in collective activities such as educational, vocational or rehabilitative programs available to general population inmates. (#110 ¶ 79.) SMU inmates cannot hold jobs as general population inmates can. Id. Inmates in the SMUs have access to legal materials and legal reference materials, reading materials and the opportunity to borrow reading materials from the institutional library.[9] (#102 ¶¶ 83, 84; #110 ¶¶ 83, 84.)

         SMU inmates' interaction with DOC staff members is limited to when rounds are conducted. (#110 ¶ 58.) While in the SMU, inmates are able to submit sick slips to be seen for medical or mental health issues and attend regularly scheduled medical or mental health appointments. (#102 ¶ 67; #110 ¶ 68.) Medical or mental health staff make rounds in the SMU, as do DOC staff and clergy members.[10] (#102 ¶¶ 67, 68; #110 ¶¶ 67, 68.)

         In contrast, in general population inmates generally are permitted to be out of their cells for seven to eight hours per day. (#110 ¶¶ 71, 85.) They have access to both indoor and outdoor recreational areas for team sports, lifting weights, and running around a track, a law library, and common areas with televisions and tables for playing games. (#110 ¶ 71.) They eat together in one space and can socialize during meals. (#110 ¶ 72.) Prisoners in general population are able to meet and communicate with staff whenever they are out of their cells. (#110 ¶ 58.) They can hold jobs (#110 ¶ 79); they have access to telephones any time they are out of their cells (#110 ¶ 85); they can participate in programs for drug treatment and education, among other programs (#110 ¶ 78); they can attend religious services (#110 ¶ 68); and they may have contact visits. (#110 ¶ 73.)

         B. The DOC's Classification Process.

         1. Classification Process in General.

         Inmates undergo an initial classification process upon commitment to the DOC. (#102 ¶ 15; #110 ¶ 15.) This classification, and any later reclassification, is done pursuant to regulation, 103 CMR 420, and the Objective Classification Manual. Id. Reclassification occurs at least annually and includes review of an inmate's custody level and compliance with the personalized program plan or recommendations.[11] Id. DOC's Central Classification Division renders final classification decisions, which include the decision to place an inmate out of state. (#102 ¶ 18.) Perry disputes these statements, claiming there is no admissible evidence to support them.[12]

         2. Security Threat Groups.

         A Security Threat Group (STG) is a gang or inmate organization that poses a threat to the safety of the public, the staff, or the secure operation of an institution. (#102 ¶ 27; #110 ¶ 27.) When deciding where an inmate will be placed, authorities consider whether the inmate is in one of these groups.[13] (#102 ¶ 28.)

         The process of identifying an inmate as a member of an STG typically begins with the staff at the institution where the inmate is located - generally an investigative unit in the institution called Inner Perimeter Security (IPS) - gathering information. (#102 ¶ 34; #110 ¶ 34.) IPS forwards its findings to the Office of Investigative Services (OIS) for review. (#102 ¶ 30; #110 ¶ 30.) OIS reaches out to law enforcement and other facilities to verify the information. Id. If the Chief of OIS finds the information sufficient, a letter is sent to the inmate informing him that he has been identified as a member of an STG. (#102 ¶ 31; #110 ¶ 31.) The inmate can then request a meeting with the Chief of OIS to dispute the identification.[14] Id. After the meeting, the Chief of OIS makes a final decision whether to affirm that the inmate is an STG member; OIS sends the inmate a letter notifying him of the final decision.[15] Id.

         3. Process for Placing Inmates Out of State and Other Institutional Placements.

         The County, Federal and Interstate (CFI) Unit, which is part of the Classification Division, makes referrals for DOC inmates classified for placement outside the DOC (such as institutions run by the Federal Bureau of Prisons and other states), as well as evaluating other agencies' referrals for inmates to be housed in Massachusetts.[16] (#102 ¶ 36; #110 ¶ 36.) Pursuant to 103 CMR 423, inmates awaiting out-of-state placements are typically held in an SMU because there is no other safe housing.[17] (#102 ¶ 41.) If inmates are terminated from an out-of-state placement, they typically return to MCI-Cedar Junction and are housed in the SMU to await reclassification. (#102 ¶ 42.) After an inmate is returned from an out-of-state placement, pending reassessment, the housing assignment within the facility is at the discretion of the superintendent and deputy superintendent, who rely on information from the Central Classification Division; a significant factor is the reason for the termination by the other state. (#102 ¶ 43.) If the termination was due to security or disciplinary issues, placement in the SMU pending full review is the most appropriate placement. Id. After an inmate's return from an out-of-state transfer, a full new assessment is made to consider disciplinary issues, security issues and whether the issue that required the out-of-state placement still exists. (#102 ¶ 44.)

         4. Special Management Units and ...

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