Opinion
Civil Action No. 99-12497-GAO.
March 31, 2005
MEMORANDUM AND ORDER
I. Introduction
The plaintiff, Keith Werner, an inmate in the Massachusetts prison system, brought this action pro se in 1999 seeking redress for harm he claims to have suffered at the hands of thirteen prison employees in November and December 1996. In his complaint, Werner alleged that he was attacked by one of the defendants, Ernest Therien, in retaliation for a request Werner had made to obtain public records for use at the hearing of a pending disciplinary action. Werner further alleged that a group of prison guards who responded to the altercation between him and Therien used unnecessary force to restrain him, repeatedly punching and kicking him, and that two guards continued to assault him as they escorted him, shackled, from the scene of the altercation to the health services unit. Werner also alleged that he was subjected to further abuse for approximately fourteen days while being housed in a segregation unit pending the outcome of a disciplinary hearing concerning the altercation with Therien.
In his complaint, Werner articulated causes of action against the prison guards for violating several provisions of the United States and Massachusetts Constitutions and Massachusetts statutes. In its essence, Werner's complaint stated federal constitutional claims (and related state law claims) for excessive use of force in violation of the Eighth Amendment, retaliation for exercise of his First Amendment rights, and denial of due process in violation of the Fourteenth Amendment.
Both parties waived a jury trial, and I conducted a thirteen-day bench trial beginning January 31, 2005. On the first day of trial, Werner substantially limited the scope of the claims he wished to try. He voluntarily dismissed all his claims for excessive use of force in violation of the Eighth Amendment and comparable state law provisions and indicated that he intended to pursue only his claims for First Amendment retaliation and Fourteenth Amendment due process violations (and comparable state provisions). Further, he stated that he was not seeking compensation for any physical or mental harm, but instead sought an award of nominal and punitive damages.
Werner presented his case pro se and did an able job of it. He is an apparently intelligent and articulate man, and he was well prepared in both his presentation of evidence and his arguments of questions of law. For a lay person, he displayed an above average familiarity with constitutional principles and case law, as well as the rules of evidence.
Upon consideration of the evidence adduced at trial, I make the following findings of fact and rulings of law:
At the close of the trial, the parties were given a little more than two weeks to submit post-trial briefs. Before the briefs were due, Werner moved for additional time to submit his brief, and I extended the deadline by two more weeks, to Friday, March 18. On Monday, March 21, the clerk's office received a second motion by Werner to extend the time for filing his brief. I denied the motion, and Werner has thus not filed a post-trial brief. The defendants' brief was timely filed on March 18.
II. Findings of fact
In November 1996, Werner was serving a sentence at MCI-Cedar Junction in Walpole, Massachusetts, where he was assigned to the Bristol III general population housing unit. MCI-Cedar Junction is a maximum security state prison.
On or about November 21, 1996, Werner made a maintenance request for repairs to the television cable connection in the cell to which he was assigned. Thereafter, Correction Officer Scott Callendar (who is not a party to this action and was not a witness at trial) wrote a disciplinary report charging Werner with damaging or destroying the cable connection. In response to that disciplinary report, Werner made a written request to prison officials seeking to obtain certain records that he intended to use in his defense at an anticipated disciplinary hearing on the charge concerning the cable connection. Among other things, Werner made what he termed a "public records request" for Officer Callendar's personnel records.
On November 27, 1996, defendant Therien was working as a disciplinary officer at Cedar Junction. Having seen Werner's document request, Therien asked the staff at the Bristol III housing unit to bring Werner to Therien's office to discuss the request and Werner's upcoming disciplinary hearing. Werner refused to go to Therien's office, however, and Therien instead went to the Bristol III unit to see him. While the details of the encounter are disputed, it is clear that Therien demanded to know why Werner wanted Callendar's personnel records. It is fair to infer that the exchange became heated on both sides. At some point, the encounter became physical.
According to the version of events given by Therien and supported to varying degrees by other correction officers who were present, Werner became irrate and boisterous when Therien told him he would not be given the personnel records. Daniel Nagle, a guard who is not a party to this action, testified that when Therien entered the Bristol III unit, Werner approached him in an aggressive manner. Defendant Timothy O'Neil, who was also on duty in Bristol III that day, testified that he was approximately six feet from Werner and Therien as they approached one another. Therien and O'Neil testified that Werner punched Therien in the face with a closed fist. Nagle testified that, although he saw Werner approach Therien in an aggressive manner and he saw the altercation begin, he did not see who threw the first punch. Therien testified that after being punched he felt that further assault by Werner was imminent; in response, he wrapped Werner in a bear hug and wrestled him to the ground. According to Therien, while on the ground he struggled to keep Werner in a bear hug to restrain Werner's arms so that he could not strike Therien.
O'Neil testified that he used his radio to send an alarm indicating "officer needs assistance," which is an alarm commonly sounded when an officer is engaged in a fight with an inmate. Nagle testified that he stepped into the hallway outside of Bristol III and shouted out that staff needed assistance. He remained in the hallway and locked the door from outside the unit. Correction Officers Troy Kasper, Edward Mack, and Paul Stubbert, Sergeants Michael Allan, James Roberts, and Paul Aucoin, and Lieutenant Patrick Smith (each of whom is a defendant in this action) were on duty in other parts of the facility; when the alarm sounded they reported to Bristol III to provide assistance. Nagle unlocked the door and let them into the unit.
Smith was the corridor lieutenant that day, and as the ranking officer in the unit, it was his responsibility to take command. He testified that upon entering the unit he saw Werner and Therien wrestling on the ground. After determining that there were no other incidents in the unit, Smith ordered his staff to set up a line of defense (to prevent other inmates from getting involved in the altercation between Werner and Therien) and ordered other officers to restrain Werner. According to Smith's testimony, Werner was not compliant or cooperative; he was throwing punches wildly and moving his hands and body all about in order to avoid being restrained. Smith instructed his staff to restrain Werner, lift him to his feet, and escort him out of the unit.
Kasper testified that when he arrived Therien and Werner were on the floor, Therien had Werner in a bear hug, and Kasper tried to place one of Werner's hands behind his back. Stubbert testified that he tried to pull Werner away from Therien and that he held one of Werner's arms until someone placed wrist restraints on him. Allan testified that he could not recall the details of the incident, but the use of force report he drafted after the incident indicates that he restrained Werner's right arm while someone else placed wrist restraints on Werner. Mack testified that he placed wrist restraints on Werner. Further, contrary to Smith's testimony, Mack testified that while he and others were trying to restrain Werner, Werner was not resisting, yelling, or screaming. O'Neil testified that while Werner and Therien were on the floor grappling he held one of Werner's legs.
After Werner's wrists were restrained, he was taken to the hallway outside the unit where leg restraints were applied to Werner. Aucoin testified that he could not recall the details of the incident, but his use of force report indicates that it was he who applied the leg restraints after Werner was removed from the unit. Smith then instructed Allan and Roberts to escort Werner to the health services unit ("HSU"). Roberts testified that they first took Werner to the "new man's section" and placed him in a holding cell until the medical staff were able to see him. They then brought Werner to the HSU where he was examined and treated by the medical staff. Allan testified that he could not recall the events, but his use of force report states that he assisted with the escort from Bristol III to the new man's section and then to the HSU. After Werner received medical assistance at the HSU, Allan and Roberts escorted him to the West Wing Segregation Unit, also known as 10-Block. The log book for the inner control room indicates that the direction to place Werner in 10-Block was given by Deputy Superintendent Powers, who is not a defendant in the case.
Not surprisingly, Werner's version of events given in his testimony was substantially different than the defendants' version in many material respects. According to Werner, it was Therien who became enraged and hostile while confronting Werner about the request for Callendar's personnel records. Werner testified that Therien demanded that Nagle open the door to Bristol III so that Therien could enter the unit, and upon entering Therien immediately approached Werner, struck him with his shoulder, and knocked him to the ground. Werner also testified that while they were on the ground Therien held him in a bear hug, and Werner was compliant and did not resist because he knew that other officers would immediately come to Therien's aid.
According to Werner, after an alarm sounded, approximately ten guards came to Therien's aid. Werner testified that when the guards came to restrain him he did not put up any resistance; nevertheless, the guards used excessive force while restraining him. Werner testified that several guards kicked and punched him while he was on the floor. He also testified that while the guards were attacking him, he tried to use his arms to protect his head from their blows. Further, Werner testified that the guards continued to punch and kick him after he was placed in wrist restraints.
Werner called two inmates to testify as percipient witnesses to the fight. Milton Walker and Mike Martin testified that they were also housed in Bristol III on the date of the incident and witnessed the event. Martin testified that he observed Werner and Therien having a conversation, and saw Therien punch Werner in the face. Martin testified that Werner then put Therien into a headlock. According to Martin, approximately ten guards responded to the scene, freed Therien from the headlock, and punched and kicked Werner. Martin further testified that Werner tried to protect himself and tried to coverup while the guards were assaulting him, but Werner was not the aggressor and he did not resist or fight back. Walker testified that Therien had been talking to Werner through the door to the unit, the door opened, and Therien entered the unit and punched Werner. According to Walker, Therien threw additional punches at Werner, Werner swung back, and then they fell to the floor. Walker also testified that seven or eight guards came into the unit and punched Werner while he was on the floor. Walker further testified, however, that Werner did not put Therien in a headlock, none of the guards kicked Werner, and Werner was not handcuffed before he was removed from Bristol III.
Werner testified that after he was restrained and the kicking and punching had stopped he was taken out of the unit, and once he was in the hallway leg restraints were applied. According to Werner, Roberts and Allan then escorted Werner to the new man's section, and Aucoin followed them. Werner testified that Aucoin and Roberts assaulted and abused him while they escorted him. In particular, Werner accused Roberts and Aucoin of striking him in the head, banging his body and his head into several walls, and pushing him down two sets of stairs. Werner testified that Allan did not physically assault him during the escort, but he also did nothing to stop Roberts and Aucoin from assaulting Werner. According to Werner, when he was brought to the holding cell in the new man's section, Roberts entered that cell and continued his assault.
In addition to denying that Werner was assaulted by Roberts and Aucoin, the defendants disputed Werner's contention that Aucoin was even present during the escort. Roberts denied that Aucoin was present during the escort or in the new man's section. Allan and Aucoin testified that they had no memory of the incident, so they could not confirm or deny Aucoin's presence during the events. The use of force reports from the date of the incident make no mention of Aucoin having been involved after Werner was taken from the area outside of Bristol III.
After a short period of time in the holding cell in the new man's section, Allan and Roberts took Werner to the HSU where he received medical attention from a nurse practitioner. The notes of the examination indicate that Werner had a small laceration on his forehead and multiple abrasions on his forehead; no further injuries were noted. The laceration was cleaned and steri-strips were applied; no other treatment was provided. The nurse practitioner testified that she had no recollection of her examination or treatment of Werner, but that it would have been her practice to conduct a visual exam of the entire body and to note any injuries she observed in the record of the encounter.
Therien was also seen at the HSU. The only injury noted was a bruise on his right forehead.
With respect to the extent of his injuries, Werner testified that he suffered only a one and a half inch laceration above his eye and suffered very slight pain that was "below de minimis." As noted, on the first day of trial, Werner waived any claim for compensatory damages for any injuries suffered. Consistent with that position, Werner maintained throughout the trial that he suffered no substantial harm as a result of the physical abuse that he alleged.
From the HSU Werner was escorted to 10-Block where he was to be housed pending a disciplinary hearing for charges made against him as a result of the fight with Therien. The conditions for inmates in 10-Block are much more restrictive than they are in the general prison population. In 10-Block, an inmate is restricted from participating in activities outside his cell without the permission and supervision of prison staff. The staff controls such things as access to the library, shower, telephone, and recreation, and controls the delivery of toiletries, blankets, sheets, as well as meals. Inmates in 10-Block are generally confined to their cells for twenty-three hours per day and are permitted one hour of recreation time five times per week. In contrast, inmates in general population have more time out of their cells and much easier access to privileges such as use of the library, telephone, and shower and to supplies such as toiletries, cleaning supplies, or writing materials. General population inmates also are able to engage in recreation and interact with other inmates.
A disciplinary hearing was eventually held, but Werner refused to attend or participate. He was convicted of the charges and transferred to the disciplinary unit for a period of time as a sanction. The validity of the imposition of this disciplinary sanction is not in issue in this case.
Ronald Duval, who was the superintendent of Cedar Junction in 1996, testified that it was the policy at that time that an inmate who was involved in an altercation with a guard was assigned to 10-Block pending the outcome of any disciplinary proceedings that might result from the incident. Duval further testified that the decision to send an inmate to 10-Block would have been made by the shift commander on duty. Defendant John McGonagle was the shift commander on duty on November 27, 1996. He testified that either he or a superior officer would have made the decision to send Werner to 10-Block. As noted above, the log book for the inner control room contains an entry indicating that Deputy Powers gave the order to send Werner to 10-Block and that McGonagle as shift commander was notified of the order. After McGonagle testified at trial, Werner voluntarily dismissed his claims against McGonagle.
Werner testified that he was subjected to further abuse while he was housed in 10-Block, particularly by defendants Joseph Almeida, Brian Ford, and Emanuel Roque. One of his principal complaints was that he was put "behind the door." Each cell in 10-Block has two doors. The inner door is a steel grate that is used to secure an inmate inside but also allows for air and light to enter the inmate's cell. The second is a solid steel door that, when closed, blocks almost all ambient light from entering the cell. There was evidence that it was a routine practice to place inmates "behind the door" in 10-Block for different reasons. For example, if an inmate was being disruptive or violent, the solid door might be closed to prevent him from throwing anything onto the tier outside the cell and to encourage him to calm down. Further, the evidence indicated that, generally, when an inmate was first brought to 10-Block after fighting with a guard, the inmate was put behind the door for a "cooling off" period. The policy was that a captain or lieutenant would decide whether to put an inmate behind the door and for how long.
There is electric lighting within each cell at two levels. The higher level, sufficient to provide adequate lighting for reading, etc., is controlled from outside the cell. The lower level, which from the testimony I infer is something like a "night light," may be controlled from within, but it provides light too dim for reading or similar activities.
Werner testified that when brought to 10-Block he was placed in a filthy cell, he was denied food for the first 24 hours, the solid door was kept closed for a week (depriving him of light), and he was not given a bedroll, toiletries, or a toothbrush. He also claims that he was denied recreation time, cleaning supplies, and canteen privileges. He also testified that while the solid door was closed defendant Almeida banged on his door every thirty minutes to prevent him from sleeping.
Werner testified that while he was in 10-Block some of the defendants verbally abused and threatened him. For example, he said that some of the defendants informed other inmates that Werner was a "baby killer" and a "rat," to incite them to retaliate against Werner. Also, Werner testified that Almeida served him a breakfast tray that contained what appeared to be a cup of apple juice but in fact after putting it into his mouth Werner believed it to be urine. Werner also testified that on another occasion when he was being escorted from the shower back to his cell, Ford took him past the front of the cell of an HIV positive inmate, William Miller, and Miller threw a cup of urine at Werner. Ford, Roque, and Almeida denied subjecting Werner to any of the abuse or deprivations which he described.
There appears to be no dispute that Miller did assault Werner with a cup of urine. Apparently both sides in this case concur that inmates sometimes throw urine and feces at others through the bars of their cells, presumably because an inmate's access to these "weapons" cannot effectively be controlled. Werner's account that Ford steered him past Miller's cell so that Miller could carry out the assault is called into question, however, by evidence from the log book that Ford had an assignment that day that would not have given him the responsibility of escorting prisoners to the shower.
Obviously, there are many material inconsistencies between Werner's and the defendants' versions of events. In particular, they disagree about whether Werner or Therien started the fight at Bristol III, whether Werner resisted being restrained, whether he was punched and kicked as the guards restrained him, whether he was assaulted by Aucoin and Roberts after he was taken from Bristol III, and whether he was subjected to abuse while housed in 10-Block.
Werner has the burden to prove the facts necessary to support his claims by a preponderance of the evidence. In other words, he must prove that it is more likely than not that the events occurred as he and his witnesses described them. Having considered the evidence, I conclude, for the reasons explained below, that he has not met that burden, and I resolve the claims in the defendants' favor.
The resolution of factual disputes in a case such as this often turns on assessing the reliability of competing and conflicting testimony from the interested parties. Especially when the parties may harbor mutual feelings of hostility that exist regardless of the present dispute, so that they view themselves as on one side or another of a divide that exists independent of the adversity that inheres in the litigation process, there is the possibility that the trial becomes not so much a search for the historical truth about a particular incident as an opportunity to win a victory (and the bragging rights that go with it) in an ongoing conflict. There is thus a substantial reason to suspect that the parties all have a substantial motive to shade the truth or even flatly fabricate to support their respective positions. When there is little independent evidence available either to corroborate or to disprove any particular version of events, making a rational decision about which version of events is closer to the truth is difficult.
To find in Werner's favor I would have to substantially credit his testimony and that of the other inmates he called as witnesses to corroborate his version of events. As to the inmate witnesses, though they gave testimony that supported Werner's version, I doubt that they had any reliable recall of an incident that occurred over eight years earlier as to which they had no involvement other than as observers. As the evidence indicated, scuffles between prison staff and inmates are not so rare that memories of such an incident would be firmly implanted in the mind of a mere observer who had no interest or participation in the event. There was evidence that each of the testifying inmates had, back in 1996, signed an affidavit supporting Werner's version of events, but the affidavits were all identical, suggesting that someone prepared the form affidavit and then solicited signatures from inmates who had been present. The affidavits do not appear to represent the individual recollections of each witness himself.
Werner's own motive to fabricate cannot easily be overlooked. Not only does he hope for an award of punitive damages against the defendants, but, money aside, he would derive a great deal of personal satisfaction (and perhaps stature within the institution) from a judgment against the defendants.
Further, Werner's numerous convictions for serious felony offenses, including crimes of dishonesty and violence, cast a broad shadow upon his credibility. His criminal records evidence a serious contempt for the rule of law and a willingness to violate the codes by which our society governs itself. Consequently, I have taken great care in scrutinizing his testimony. Where, as here, the ultimate determination of the true version of events comes down to a choice between Werner's version and the defendants' version, and Werner has the burden to prove that his version is more likely true, it is not possible to find in his favor. His evidence was simply too thin, and there were numerous reasons not to fully credit his testimony.
The same may be said of the inmates Werner called as witnesses.
I also note that Werner acknowledged in his trial testimony that he was taking approximately seven medications, several of which appear to have been psychotropic.
That is not to say that the defendants' testimony was convincing. After thirteen days of trial, I was left with the unsettling conviction that, with the exception of disinterested witnesses like the nurse practitioner who had only limited testimony to give, virtually no one was telling the full truth about what happened at Cedar Junction with respect to the treatment of Werner in November and December 1996.
A relatively trivial example of the defendants' reluctance to be candid and complete is the way some of them responded to Werner's questions about the preparation of their answers to interrogatories. It was clear that the defendants did not personally draft their answers to Werner's interrogatories on their own, but that the answers were prepared by defense counsel and presented to the defendants for their review and signature. That approach is well known and common throughout the legal profession. Yet some of the defendants were unable to candidly acknowledge that fact, apparently concerned that doing so would either hurt their case or help Werner's. An unwillingness to be candid even about small matters is a warning sign about the reliability of the testimony on more substantial matters.
In addition, some of the defendants claimed to have no memory whatsoever of the events in issue and repeatedly answered that they could not recall or did not know when questioned about those events. This is the reverse of the situation with the inmates who testified for Werner and pretended to have memories they did not have. I have no doubt that memories fade over the course of more than eight years and, indeed, would fully expect that the witnesses would not have the ability to recall the events with perfect clarity. I find it incredible, however, that some defendants could recall almost nothing about the events in issue. Their incredible failure of memory, however, does not substitute for affirmative evidence and consequently does not make Werner's testimony more credible nor otherwise help Werner meet his burden of proof.
In evidence was a collection of documents, including the defendants' use of force reports, that was compiled for the disciplinary proceeding against Werner after the altercation with Therien. Those reports were used at trial to refresh — or try to refresh — the defendants' recollections of the events in issue. The reports, however, have limited value. Some of the reports used identical language to describe the events, suggesting that some of the defendants collaborated in preparing the reports after the incident. Further, the evidence at trial revealed that, consistent with what was the standard operating procedure, each defendant hand wrote his report, submitted it to a single superior officer who reviewed them all, after which they were submitted to a single administrator to be typed. The original handwritten reports were not maintained or offered as evidence at trial.
In summary, I conclude that Werner failed to prove by a preponderance of the evidence facts sufficient to sustain his various causes of action. I am not persuaded, specifically, that Therien or other guards initiated or used unreasonable or unnecessary force on Werner in the original incident at Bristol III or during the escort of Werner to the HSU and eventually to 10-Block. I am also not persuaded that the officers in 10-Block were responsible for inciting or permitting any assault by any other inmate, particularly William Miller. I affirmatively disbelieve Werner's testimony as to the length of time he was kept "behind the door," because entries in the log book indicate that during the time he claimed to be behind the door he received visits and was out of his cell making telephone calls and visiting the library.
Because of the absence not of any evidence but of reliable evidence on some issues, I am not able to make findings that resolve those issues. For example, although I can conclude that Werner and Therien had a verbal confrontation that led to a physical scuffle and eventually Werner's being subdued by force by a number of correction officers, I am not able to resolve whether Werner or Therien initiated the physical contact because I do not trust the evidence on either side of that question. Similarly, while I find it plausible that the "hands on" escort of Werner to the HSU involved some rough handling by some of the guards, I cannot reliably assess how rough it was or whether any use of force was necessary to overcome continued resistance by Werner. I do find, however, that whatever force was applied did not cause any visible physical injury to Werner. The only visible injuries seen by the nurse practitioner were the laceration and bruises on Werner's face, which I conclude he suffered in the original struggle as he was wrestled to the ground and not afterward.
Other specific factual findings pertinent to Werner's legal theories are discussed below in connection with my rulings of law and the application of the law to the facts of this case.
III. Rulings of law
A. First Amendment retaliation
Werner alleges that Therien's attack, the responding guards' use of excessive force, and Ford, Roque, and Almeida's abusive behavior while Werner was in 10-Block were all motivated by an intent to retaliate against Werner for his having requested Callendar's personnel records. Werner claims that such retaliation violated his First Amendment rights. "A retaliation claim essentially entails three elements: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two — that is, the adverse action was motivated at least in part by the plaintiff's protected conduct."Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). Here, Werner has failed to prove all three elements with respect to any defendant.
1. Protected conduct
To satisfy the first element, Werner must prove that he had engaged in constitutionally protected conduct. His claim is that his request for Callendar's personnel file was an exercise of his First Amendment right to obtain information from the government.
Werner has no constitutional right to compel the government to produce or provide information or documents. See Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (plurality opinion) ("Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control."); Zemel v. Rusk, 381 U.S. 1, 17 (1965) ("The right to speak and publish does not carry with it the unrestrained right to gather information."). Werner's right to obtain Callendar's personnel records arose, if at all, under state laws or regulations. The Massachusetts public records law, which affords some right of access to records maintained by governmental agencies, generally excludes personnel records from the definition of "public records" to which access must be granted. Mass. Gen. Laws ch. 4, § 7, cl. twenty-sixth. Even if Werner had a right of access to such records under state law, it was not a right protected by the First Amendment of the Federal Constitution.
2. Adverse action
The second element of Werner's retaliation claim requires that he prove that the defendants took an adverse action against him that would deter a person of ordinary firmness from engaging in the protected conduct. The adverse conduct of the defendants that Werner had alleged and testified to at trial, if proved, certainly would have satisfied that standard. However, as indicated above in my findings of fact, I have concluded that Werner has not met his burden to prove that the defendants engaged in the complained of conduct. There is insufficient evidence to conclude that Therien assaulted Werner, that the guards who responded to the altercation used excessive force to restrain Werner, that Roberts and Aucoin assaulted Werner as they escorted him to the HSU, or that Ford, Roque, and Almeida assaulted or abused Werner while he was assigned to 10-Block. Accordingly, Werner has not proved the second element of his retaliation claim against any of the defendants.
3. Causal link between protected conduct and adverse action
The third element requires Werner to prove that there was a causal connection between his having engaged in protected conduct and the defendants' adverse actions against him. In other words, the defendants' adverse actions must have been motivated at least in part by the plaintiff's protected conduct.
At the close of the plaintiff's presentation of evidence at trial, upon the defendants' motion, I ruled in favor of defendants Stubbert, Smith, O'Neil, Mack, Kasper, Ford, and Roque under Fed.R.Civ.P. 52(c) with respect to Werner's First Amendment retaliation claim because Werner had failed to prove that any of them had any knowledge, direct or indirect, that Werner had made a request for Callendar's personnel records. It follows that if they did not know he had made the request, their actions could not have been motivated by his request. As to defendants Allan, Aucoin, Roberts, and Almeida, I now reach the same conclusion with respect to the First Amendment retaliation claim, that is, Werner has not proved that those defendants knew that Werner had made a request for Callendar's records, so that such request could not have been the motivation for any actions they took with respect to Werner.
As to Therien, the evidence is clear that he knew of the request and took umbrage at it. Therien himself confirmed this during his trial testimony. However, Werner's First Amendment retaliation claim against Therien fails because, as previously stated, Werner failed to prove that Therien retaliated against Werner by, as Werner charges, striking him and starting a fight with him. At most, Werner proved that Therien came to Bristol III to discuss Werner's request for records, that the ensuing argument became heated, and that Therien was confrontational. But an argument is different from physical force, and without sufficient believable evidence to permit me to conclude that Therien initiated the physical fight, Werner has not proved that Therien's motivation led to an act of retaliation.
B. Due process claim
Werner has also claimed a violation of his Fourteenth Amendment rights. While imprisoned, inmates continue to enjoy the protections of the Fourteenth Amendment and, consequently, may not be deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To prove a violation of the Due Process Clause, Werner must prove both that he was deprived of a constitutionally protected liberty interest and a failure on the part of the defendants to have provided him with due process. In other words, a violation of the Due Process Clause is not complete simply on the occurrence of a deprivation, but only when the state also fails to provide a process that is due under the circumstances. Zinermon v. Burch, 494 U.S. 113, 125-26 (1990). With respect to the liberty and property interests of prisoners, random and unauthorized deprivations effected by prison employees do "not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available."Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also Zinermon, 494 U.S. at 131-32 (finding that Parratt-Hudson doctrine applies to liberty as well as property interests).
It is not clear precisely what Werner intends his due process claim to be. At times, Werner seemed to argue that the decision to reassign him from general population in Bristol III to the 10-Block segregation unit violated the Due Process Clause. The Supreme Court has recognized that an inmate may have, under certain circumstances, a protected liberty interest in being free from conditions of confinement that "impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Werner repeatedly referred to the Sandin formulation in arguing that his conditions of confinement in 10-Block represented an "atypical and significant hardship," thus indicating both that he was aware of the constitutional standard and that he intended his claim to be based on it. The Supreme Court made clear in Sandin, however, that the scope of that liberty interest is limited by concluding with respect to the facts of the case before it that a thirty day confinement in disciplinary segregation did not implicate a liberty interest because the conditions in disciplinary segregation, while more restrictive, did not sufficiently differ from the conditions in administrative segregation, protective custody, or the general prison population. Id. at 485-86.
I need not decide whether the conditions in 10-Block as compared to other units at Cedar Junction were so restrictive as to support a due process claim under Sandin, however, because there is an alternative basis for resolving this claim. Werner's due process claim under the theory described in Sandin would lie, if at all, only against the state official or officials who were responsible for the deprivation, which would have been accomplished by the decision to deprive him of the affected liberty interest by ordering him transferred to 10-Block. The testimony at trial indicated that the decision to send Werner to 10-Block would have been made either by the on-duty shift commander or by a more superior officer. The shift commander, Captain John McGonagle, was a defendant to this action. During the trial, however, Werner voluntarily dismissed his claims against McGonagle. Further, as noted above, the evidence was that Deputy Powers, McGonagle's superior, ordered Werner transferred to 10-Block. Powers is not a party to this suit. None of the other defendants could be held personally responsible for the due process violation alleged under theSandin standard because none of them was a relevant decision-maker.
At other times, Werner seemed to argue that the due process violation occurred when Almeida, Ford, and Roque subjected him to various kinds of abuse in 10-Block, including keeping him "behind the door" for a week, banging on his door to prevent him from sleeping, serving him tainted food, denying him food, and denying him life's basic necessities such as toiletries and bedding. As previously stated, Werner has failed to carry his burden of proof that the alleged deprivations and abuse in fact occurred. Nevertheless, even if the defendants had engaged in the complained of conduct, Werner has not established a constitutional due process violation because he has not proved that he was without an adequate post-deprivation remedy for such rogue abuses of power by the guards. In other words, the proper cause of action for the harm alleged is not a due process claim but an Eighth Amendment claim or a claim under state tort law. At trial, Werner voluntarily dismissed his Eighth Amendment claims against the defendants, and there was no evidence at trial that Werner ever pursued remedies that might be available under state tort law.
Finally, the defendants in their post-trial brief set forth and attempt to rebut an additional potential due process claim. The defendants suggest that Werner sought to prove a claim that his Fourteenth Amendment due process rights were violated because the defendants filed false disciplinary reports and provided false testimony in a disciplinary proceeding that resulted in Werner being sentenced to six months in disciplinary segregation as punishment for having engaged in the altercation with Therien. I do not agree with the defendants' characterization of Werner's Fourteenth Amendment claim. The theory presented and rebutted in the defendants' post-trial brief is not reflected in Werner's complaint, and he did not articulate that theory at trial. If it were his intent to try such a Fourteenth Amendment claim, then he has failed for lack of proof. The evidence at trial focused primarily on the events that occurred on November 27, 1996, and the two-week period that followed, during which Werner was assigned to 10-Block. There was little if any evidence presented at trial concerning the procedures that were employed during the disciplinary hearing which followed the altercation between Werner and Therien. I therefore draw no conclusion concerning the adequacy of those procedures, except to say, to the extent it is relevant to any issue in this case, that Werner did not present sufficient evidence to prove that the disciplinary procedures were inadequate.
C. State law claims
In his complaint, Werner also asserted claims under the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 12, §§ 11H 11 I. The MCRA — the state law analog to 42 U.S.C. § 1983 — provides a vehicle for the enforcement of constitutional rights and permits an individual to bring a private cause of action against any person who interferes, "by threats, intimidation or coercion, . . . with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth." To prove a claim under the MCRA, Werner must prove both the interference with the exercise of rights secured under the Federal or State Constitution or laws and that the interference occurred by threats, intimidation, or coercion. As previously stated, Werner has failed to prove that the defendants interfered with his exercise of any federal constitutional rights. Werner's claims under the State Constitution fail for the same reasons.
In his complaint, Werner has alleged interference with his rights secured by Articles 1, 10, 14, 16, and 26 of the Massachusetts Declaration of Rights. Articles 1 and 10, among other things, provide certain protections for liberty interests, and those protections have been compared to the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. See Hudson v. Comm'r of Correction, 707 N.E.2d 1080, 1083-84 (Mass.App.Ct. 1999) ("The Supreme Judicial Court has . . . consistently equated as comparable, both generally and in the prison environment, the due process protections" of the Federal Constitution and those provided under Articles 1, 10, and 12 of the State Constitution). Article 16 preserves the right of free speech, and a claim under that article is judged by the same criteria established under federal First Amendment jurisprudence.Smith v. Comm'r of Mental Retardation, 567 N.E.2d 924, 928-29 (Mass. 1991). Werner has failed to prove a free speech or due process violation under the Federal Constitution, and there is no basis upon which to reach a different conclusion concerning analogous rights protected under the State Constitution.
Article 26, like the Eighth Amendment of the Federal Constitution, proscribes the infliction of cruel and unusual punishment. Article 14, like the Fourth Amendment of the Federal Constitution, concerns searches and seizures. On the first day of trial, Werner voluntarily dismissed those claims. Werner also voluntarily struck from his complaint language concerning violations of 42 U.S.C. § 1985(3) and § 1986 and Mass. Gen. Laws. ch. 265, § 37.
Werner has also failed to prove the additional element required under the MCRA, that is that the defendants interfered with his rights by threats, intimidation, or coercion. At the beginning of the trial, Werner struck from his complaint all references to intimidation and coercion and indicated that he based his claims only on the defendants' alleged threats. For purposes of the MCRA, a threat "involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm." Planned Parenthood League of Mass., Inc. v. Blake, 631 N.E.2d 985, 990 (Mass. 1994). The only evidence provided at trial of any threats was Werner's testimony that Almeida told him that Werner would pay for fighting with Therien and would never make it out of 10-Block alive. First, Werner's testimony standing alone was insufficient to induce me to conclude that Almeida made those threats, and I do not so conclude. Further, even if the threats were made, there is no evidence that they interfered with Werner's exercise of any federal or state right.
IV. Conclusion
For the reasons set forth above, Werner has not carried his burden of proof to establish any of his claims. Judgment shall enter in favor of all defendants on all claims.
It is SO ORDERED.