Goguen v. Allen, No. 13-2278 (1st Cir. 2015)
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Plaintiff, a former pretrial detainee at the Somerset County Jail (SCJ), filed this action under 42 U.S.C. 1983 alleging that various correctional and administrative officers at SCJ violated his rights under the First, Fourth, Sixth, 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 district (1) granted summary judgment to several defendants who did not personally support or direct the alleged violations; and (2) with respect to the remaining defendants, there were genuine issues of material fact concerning the defendants’ motives and actions precluding summary judgment. Those remaining defendants appealed. The First Circuit dismissed the appeal for lack of appellate jurisdiction, as the defendants did not take issue with the district court’s factual assessments or come forward with any purely legal issues for the Court’s consideration.
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United States Court of Appeals For the First Circuit No. 13-2278 ROBERT GOGUEN, Plaintiff, Appellee, v. DAVID ALLEN, JESSICA ALMEIDA, DARLENE BUGBEE, JAMES FRENCH, EDDIE JACQUES, JENNIFER GILBLAIR, MARGARET KELLY, CRAIG MEUNIER, KEITH PLOURD, MICHAEL RIZZO, Defendants, Appellants, COREY SWOPE, SHAWN MAGUIRE, GARY CRAFTS, THERESA BROWN, JULIE HAYDEN, JEFFREY JACQUES, Defendants. ___________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge] ___________________ Before Lynch, Chief Judge, Ripple* and Selya, Circuit Judges. ___________________ Peter T. Marchesi, with whom Cassandra S. Shaffer Wheeler & Arey, P.A., were on brief, for appellants. Michael J. Waxman for appellee. * Of the Seventh Circuit, sitting by designation. and March 12, 2015 2 RIPPLE, pretrial Circuit detainee at Judge. the Robert Somerset Goguen County Jail is a former (“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. judgment to personally remaining genuine several in the defendants alleged defendants, issues of The district court granted summary who had violations. the court material With concluded fact not concerning participated respect that the to there the were defendants’ actions and motivations that precluded summary judgment. These remaining defendants timely appealed. We conclude that the defendants’ dismissed for want of appellate jurisdiction. appeal must be 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. Cady v. Walsh, 753 Consequently, following our holdings in F.3d 348 (1st 3 Cir. 2014), and Penn v. Escorsio, 764 F.3d 102 (1st Cir. 2014), we cannot entertain the defendants’ appeal. I. A. Between March and December 2011, Mr. Goguen was detained at the SCJ awaiting his trial on pending charges in state and federal courts. 2011, the SCJ housed From March 15, 2011, until June 23, 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 significantly greater restrictions. center on his administrative repeated placement segregation. We security, imposes Mr. Goguen’s allegations in A-pod, therefore ostensibly discuss, in for some detail, the conditions of confinement in A-pod. Inmates in administrative significantly restrictive environment. segregation endure a 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 4 segregation leave their cells to shower three times per week; each generally is allowed ten to fifteen minutes to shower. inmate 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 Apod, 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. when SCJ staff Additional cell searches also may be conducted members possesses contraband. receive information that an inmate 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. 5 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 segregation hold a hearing placement. to review administrative- review Another the 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 Gilblair’s based search on the uncovered evidence commissary 6 before it. Officer items including one plastic soap dish, one bar of soap, one plastic bowl, one whitecolored 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.”1 reason to Mr. Goguen maintains that there was no legitimate 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. Meunier therefore wrote a disciplinary report Officer concerning Mr. Goguen’s conduct, in which he charged Mr. Goguen with a violation of B–24, “Interfering,” and B–12, “[P]rovocation.”2 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 1 See R. 56-11 (SCJ Policy-“Inmate Discipline”) at 72; R.45-18 (SCJ Disciplinary Report dated 6/23/11) at 1. 2 R.45-20 (SCJ Disciplinary Report dated 6/23/11) at 1. Although the disciplinary report identifies “Provocation” as a violation of policy “B-12,” “Provocation” actually corresponds to B-13. R.56-11 (SCJ Policy-“Inmate Discipline”) at 71. 7 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.”3 Following this incident, Mr. Goguen was placed in administrative segregation in A-pod on order of then-Sergeant Keith Plourd.4 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 notice the of story. Officer infraction, which Ducharme informed provided him of Mr. the Goguen a 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. 3 R.83 (Goguen Dep.) at 47. 4 Sergeant Plourd now has been promoted to Lieutenant. However, we shall refer to him by his rank at the time the alleged actions took place. Mr. Goguen maintains that, as a result of the search conducted on June 23 and his subsequent transfer to A-pod, some of his legal papers went missing. He has not substantiated this allegation through any sworn statement. 8 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 Mr. Goguen’s Mr. Goguen hearing. June 23 identified Officer infractions his location, but not by name. for witnesses by referred disciplinary description both of hearings. and cell He also did not put in writing the 9 Crafts 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 Eddie Jacques. Mr. Goguen’s officers’ was At the testimony, incident conducted on hearing, viewed reports, July 1 Officer Officer Jacques still photos, found Mr. and by heard reviewed Goguen the 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. reports that segregation. interfering he had Mr. and Officer Eddie Jacques stated in his assessed Goguen zero appealed provocation to days the the of disciplinary decision concerning administrator of SCJ, Major David Allen, but the decision was affirmed. While stayed in defendant these A-pod. His Lieutenant proceedings placement were first Campbell ongoing, was on Mr. reviewed June Goguen by 26, non2011. 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. 10 On July Mr. Goguen’s 1, 2011, a hearing administrative-segregation was held status. to review 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 administrative that segregation Mr. until a Goguen should classification remain in 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. the Following the hearing, at which Mr. Goguen testified, 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 Epod, 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 11 concerning his bunk assignment. During Mr. Goguen was assigned an upper bunk. cell reassignments, Mr. Goguen, however, told Officer Michael Rizzo that he needed a lower bunk. Officer Rizzo inquired of the medical department When whether Mr. Goguen had a bottom-bunk restriction, the medical department responded that he did not. accounts of the events The parties give vastly different that followed. According to the defendants,5 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.”6 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.7 The B-11 infraction eventually was dismissed. 5 The defendants’ version is set forth in their brief. Appellants’ Br. 27–28. 6 R.56-11 (SCJ Policy-“Inmate Discipline”) at 71. 7 R.83 (Goguen Dep.) at 58–59. 12 See Mr. Goguen’s placement in administrative segregation was reviewed determined by that segregation. Lieutenant Mr. Goguen Campbell should on July remain in 18, 2011. He administrative 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 Madore served as committee members. Officers Jewell and 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 Apod.8 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.”9 On July 28, Mr. Goguen was removed from administrative 8 See R.56-3 (Administrative Segregation Status Placement dated 7/15/11) at 14 (“Inmate Robert Goguen placed on Ad Seg for disrupting the pod during cell moves. Inmate Goguen argued with the pod officer during cell moves.”). 9 Id. 13 segregation and moved back to E-pod because he was “[r]eady to follow orders” and was placed in an upper bunk.10 Shortly after Mr. Goguen returned Officer Rizzo approached Mr. Goguen and stated: sure that you do not come back to this to E-pod, “‘I will make 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.’”11 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. was on the When Mr. Goguen tried to explain that he 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.”12 (Mr. Goguen) Once there, Major Allen informed him that he would not be threatening Id. 10 11 R.83 (Goguen Dep.) at 62. 12 Id. at 17. 14 other officers with lawsuits under his watch.13 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 “Provocation,” for arguing. for a violation of B–13, 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, 2011.14 document, Mr. Sergeant Plourd performance of lawsuits.”15 The Goguen for was placed “continually their duties” following in arguing and day, According to that segregation with Staff “threatening however, in Staff Lieutenant by the with 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.”16 13 See id. at 16–17. 14 R.56-3 at 17. 15 Id. 16 Id. 15 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 the back was urinating. facing Mr. Goguen later urinating during the count. report and “Count.”17 a notice of officers, and testified he that appeared he in to fact be was Officer Rizzo wrote a disciplinary infraction for a violation of A–05, 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. which Mr. Goguen Officer Crafts presided at the hearing, at testified. As part of this hearing, Officer Crafts reviewed answers to written questions posed by Mr. Goguen to his cell mate. Following the hearing, 17 R.56-11 (SCJ Policy-“Inmate Discipline”) at 70. The policy defines this violation as follows: “A-05 Count-Non presence at or interfering with the taking of an inmate count, either formal or informal.” Id. 16 Officer Crafts found Mr. Goguen guilty of the count violation, but not guilty of the threatening and provocation violations. For punishment, Officer Crafts imposed a $25 fine and three days’ disciplinary segregation. Major Allen denied Mr. Goguen’s appeal. Mr. Goguen’s administrative segregation initially was reviewed on September 4 by Lieutenant Campbell, who determined that Mr. Goguen should remain in A-pod. Mr. Goguen received notice to that effect and was advised that his placement would be reviewed again on September 9. At that hearing, Sergeant Plourd presided, and Officer French and non-defendant Officer Ducharme dispute the defendants, acted testimony Mr. Goguen as committee that was testified members. given. that The According there was parties to an the ongoing investigation concerning Officer Rizzo and other staff at the SCJ.18 The committee determined that Mr. Goguen should remain in administrative segregation until the investigation into the incident concluded. 18 Mr. Goguen now denies saying this; according to Mr. Goguen, he testified at the hearing that Officer Rizzo’s statements should be investigated. Mr. Goguen, however, does not point to any sworn testimony in the record to support his denial. 17 Mr. Goguen’s administrative segregation was again reviewed on September 16, with Lieutenant Campbell as hearing officer and non-defendant Officers Marose and Davis as committee members. At the hearing, the committee considered evidence that there was no investigation of SCJ officers pending, Mr. Goguen had no new write-ups, and he had been medically cleared. committee determined administrative segregation Mr. Goguen that Mr. Goguen segregation, for was an old but should placed write-up. transferred back to be On removed on from disciplinary September E-pod, The where 21, he 2011, remained until October 21, 2011. 4. September 29 and October 2 Infractions On September 29, 2011, Officer Rizzo saw Mr. Goguen drinking black liquid from a cup. Officer Rizzo asked Mr. Goguen if he had a receipt for coffee; Mr. Goguen responded that he did not. Officer Rizzo told Mr. Goguen to dump it out, and, a few minutes later, Mr. Goguen complied. liquid Officer was water Rizzo infraction Swapping.” for and wrote a that a it was Mr. Goguen claims that the the disciplinary violation of C–04, cup report that and “Giving, a was black. notice of Receiving, or According to Mr. Goguen’s testimony, Officer Rizzo was on the upper tier, and he was on the lower tier when this 18 encounter occurred; Mr. Goguen asserts that the cup itself was “disgustingly black” and that Officer Rizzo refused to inspect it.19 Officer Meunier gave Mr. Goguen September 29 infraction that same day. a notice of the Officer Meunier spoke to Mr. Goguen and asked for his side of the story. The following day, Mr. Goguen received notice that a disciplinary hearing was scheduled for October 3, 2011. On October 2, 2011, Mr. Goguen was seen eating half of a sandwich while he had a full uneaten sandwich on his tray. A review of video showed that another inmate had pushed his tray to the center of the table and that Mr. Goguen removed the sandwich. report and Non-defendant Officer Baldinelli wrote a disciplinary a notice for a violation of C–14, “Unauthorized Food,”20 and Mr. Goguen received a copy of the notice. Non- defendant Officer Munn was assigned to investigate the incident and spoke to Mr. Goguen. Officer Munn told Mr. Goguen what the alleged violation was about. Mr. Goguen stated: “Ah f--k it”; he also stated that another inmate “threw us under the bus. I 19 R.83 (Goguen Dep.) at 79. 20 R.56-11 (SCJ Policy-“Inmate Discipline”) at 73. 19 don’t need to hear any more.”21 The following day, Mr. Goguen was given notice that a disciplinary hearing for the sandwich incident was scheduled for October 6, 2011. The disciplinary hearing for the coffee incident was held on October hearing officer. 3. Officer Jeffrey Jacques served as the Mr. Goguen testified at the hearing and stated that the liquid was water, not coffee. He had been given a few still photos to present as evidence at the hearing. Officer Jeffrey Jacques found Mr. Goguen guilty of the violation and imposed a restriction one-day is cell allowed to restriction. come out An of the inmate cell to on cell eat, to shower, and for appointments, but may not leave the cell for recreation. Mr. Goguen did not appeal this decision. The disciplinary hearing for the sandwich incident was held on October 6. the hearing Non-defendant Officer Michael Johnson was officer. Mr. Goguen pleaded guilty, and Officer Johnson imposed a four-hour cell restriction. 5. On Officer Rizzo October 13, 2011 Cell Search October to 13, perform 2011, a search 21 R.45-9 (Munn Aff.) at 1. 20 Sergeant of Mr. Plourd Goguen’s ordered cell. Mr. Goguen asserts that, during the search, Officers Rizzo and Eddie Jacques took thousands of pages of discovery related to one of Mr. Goguen’s then-pending civil cases (against correctional officers at another county jail) and threw them on the floor. were out Some documents landed in the toilet and sink; all of order and strewn across the cell. The search uncovered a soap dish and soap; neither inmate in the cell had a receipt, and both disclaimed ownership of the items. Officer Rizzo found a cup of coffee, dried paper blocking most of the vent, and an empty coffee bag with a sugar packet under Mr. Goguen’s mattress, all of which were contraband. Officer Rizzo also found an envelope on Mr. Goguen’s side of the cell that was Officer Rizzo sealed opened and the was marked envelope as and legal saw a paperwork. memo from Major Allen, at which point he stopped and took the paperwork to Sergeant paperwork Plourd and to review. instructed Sergeant Officer Mr. Goguen, which Officer Rizzo did. 21 Plourd Rizzo to looked return at it the to Officer Rizzo wrote a disciplinary report and a notice of infraction for a violation of C–09, “Possession,”22 concerning the items found in the cell, but the charge later was dismissed. 6. October 17, 2011 Shower Request On October 17, 2011, Mr. Goguen was housed in a cell on the bottom tier in E-pod. He asked to go upstairs to shower and was told that he was not allowed to go to the upper tier for any reason and that, as a lower-tier inmate, he could not shower after the top of the hour. Later Mr. Goguen, along with another inmate named Gill, argued with Officer Rizzo about the shower rules.23 report The following day, Officer Rizzo wrote a disciplinary and a notice of infraction for a violation of “Provocation,” in connection with the shower incident. B–13, Officer Eddie Jacques investigated the incident and spoke to Mr. Goguen. The officer told Mr. Goguen the nature of the alleged violation, asked for Mr. Goguen’s Mr. Goguen a copy Mr. Goguen received of version the notice of notice. that scheduled for October 25, 2011. a the On events, October disciplinary and 20, hearing gave 2011, was The hearing actually occurred 22 R.56-11 (SCJ Policy-“Inmate Discipline”) at 73. 23 Mr. Goguen does not allege that the rules did not exist or that they were being enforced in an arbitrary manner. 22 on October 31, 2011, with Officer Jeffrey Jacques as hearing officer. The officer heard testimony from Mr. Goguen and also considered video footage and the written responses to questions posed by Mr. Goguen to Llewellyn Eaton, Officer Julie Hayden, and Officer Rizzo.24 Officer Jeffrey Jacques found Mr. Goguen guilty of the provocation violation and imposed three days of disciplinary segregation. Major Allen denied Mr. Goguen’s appeal. 7. Miscellaneous Incidents, Grievances, and Requests Throughout filed a number officers. of One Prisoner’s Self September grievances grievance Help and October concerning concerned Litigation a 2011, the Mr. actions book Goguen of entitled, Manual.” SCJ “The According to Mr. Goguen, the book had been delivered to him at the beginning of September. When he returned from recreation on September 6, however, the book, as well as Mr. Goguen’s personal notes on the book, had been Shawn Maguire. missing book. removed Mr. On from Goguen his filed September 21, cell, a allegedly grievance Officer by Officer concerning Maguire wrote the a 24 Mr. Goguen also had posed questions to another inmate, Gill, but Gill had been released so was unavailable to respond to questions. 23 memorandum responding to this and four other grievances. Subsequently, Mr. Goguen filed grievances concerning his lack of access to various resources including law library books, prison policies, Title 34–A of the Maine Revised Statutes, and the self-help litigation manual; he also filed grievances concerning the staff subsequent at SCJ opening grievances, his filed actions of Officer Rizzo. legal on mail.25 September 29, One of these concerned the According to Mr. Goguen’s grievance, Officer Rizzo refused to have someone examine the documents that Mr. Goguen intended to bring to a meeting with his attorney. 25 Non-legal mail is opened and inspected for contraband. Any mail that is determined to be legal mail is not to be opened, but is attached to a legal mail inspection form and forwarded to the housing unit. The following day an officer in the housing unit delivers the mail and opens any legal mail in the presence of the inmate. Once the officer determines that the mail does not contain contraband, the legal mail is turned over to the inmate. Inmates are not allowed to have sealed envelopes in their cells, and there is no exception for legal mail. SCJ policy does permit inmates to send sealed envelopes without censoring, inspection, or restriction to certain recipients. According to the defendants, if an inmate in A-pod has outgoing legal mail, A-pod officers go around on the night shift with a sealed box for the inmate to place any legal mail in the box. The inmate seals the envelope immediately before placing it in the box. For inmates in E-pod, there is a box for mail in the pod. This box is picked up daily. The inmate can seal any mail right before placing it in the box. Mr. Goguen maintains that there is no rule about having to seal or not seal any envelopes. 24 According to Mr. Goguen, Officer Rizzo both denied his request and taunted him in doing so. On October 12, Officer Margaret Kelly confiscated Mr. Goguen’s legal file as he arrived for a meeting with his attorney, although the documents already had been examined for contraband and had been authorized for use at the meeting. The file was returned to Mr. Goguen later, but he did not have the benefit of his research and documentation in discussing his criminal case with counsel. 8. On October 21, 2011 Placement in A-pod October 21, 2011, Lieutenant Bugbee placed Mr. Goguen in administrative segregation and transferred him to A-pod because he “pose[d] a serious threat [to the] security or orderly running of the institution.”26 The “factual basis for [the] placement” was that Mr. Goguen had not “adjust[ed] to the rules and regulations set forth by this facility” and had continued to argue with and “be[] confrontational with Staff.”27 This placement was reviewed by non-defendant Sergeant Pullen on October 24, 2011, who determined that Mr. Goguen should remain 26 R.56-3 (Administrative 10/21/11) at 23. 27 Segregation Id. 25 Status Placement dated in administrative segregation; Mr. Goguen was provided with notice of this decision the day it issued. 9. Maximum Security Classification On October 26, 2011, Mr. Goguen was reclassified from medium security to maximum security because it was determined that he was a danger to the safety and security of the facility. Mr. Goguen received notice of his reclassification, appealed the reclassification decision. held on November classification 1, 2011. committee At consisted he The appeal hearing was the of and appeal Officer hearing, Theresa the Brown, Lieutenant Bugbee and two non-defendant officers, Stephen Giggey and Chris Murray. hearing. The Mr. Goguen was present and testified at the classification committee reviewed log entries concerning Mr. Goguen dated between July 23, 2011, and October 21, 2011. It determined that Mr. Goguen would remain in maximum security because he was very argumentative and disrespectful to officers and because he was unable to follow the rules of the facility. The classification committee makes its determinations based on majority vote. 26 Mr. Goguen was told that he could appeal his classification decision to Major Allen, but he did not do so.28 According to Mr. Goguen, an appeal would have been futile because it was Major Allen who had reclassified him to maximum security only five days earlier. Mr. Goguen remained in A-pod from October 21, 2011, until he was transferred out of SCJ in December 2011. Maximum security inmates are allowed the same amount of recreation, time for showers, and time for phone calls as inmates in administrative segregation. However, corrections officers place maximum security inmates in four-point restraints when they use the library cart and make phone calls. Mr. Goguen maintains that Sergeant Plourd imposed this requirement only on him, and this practice prevented him from accessing the library cart.29 He testified that this practice was enforced by Lieutenant Bugbee and Officer Jessica Almeida as well.30 28 An inmate is permitted to request review of classification status by a classification supervisor every sixty days. An inmate’s classification status is automatically reviewed every ninety days. 29 See R.83 (Goguen Dep.) at 42. 30 See id. at 43, 100. 27 10. Other Incidents Among the other bases for Mr. Goguen’s complaints is that a drawing he made was confiscated as contraband because it contained gang symbols. Mr. Goguen had left the drawing inside a magazine in his cell, and the magazine with the drawing still in it was found in the possession of another inmate. drawings are considered contraband at the SCJ because Color some colored drawings have been used to conceal drugs; the inmates lick or swallow the colored paper to get high. Mr. Goguen maintains that there were no gang symbols in the drawing and questions whether inmates are able to hide drugs in a drawing made inside the SCJ. Mr. Goguen also testified that, on November 6, 2011, after being reclassified as a maximum-security inmate, Officers Eddie Jacques and Meunier ordered him to turn his back to the cell door and put his hands together out through a door slot. They then handcuffed him and pulled the door open suddenly, wrenching his arms and shoulders and causing severe pain in his shoulder and back.31 31 See id. at 94–95. 28 Finally, Mr. Goguen recounted that, in December 2011, he was moved by Officer Meunier from an observation cell to another A-pod cell that had blood, vomit, and feces in it. According to Mr. Goguen, both Officer Meunier and Officer Kelly denied him supplies to clean the cell. B. 1. Mr. Goguen filed this action under 42 U.S.C. § 1983, naming numerous officers and administrators at SCJ.32 second amended complaint, Mr. Goguen detailed In his the events described above and alleged that these and other actions taken by the defendants violated his right to be free from unreasonable searches and seizures under the Fourth Amendment, violated Amendment, his his right right to to due process petition the under the Government Fourteenth for redress under the First Amendment, his right of access to counsel under 32 Specifically, Mr. Goguen named the following defendants: Major Allen, Lieutenant Bugbee, Sergeant Plourd, Classifications Supervisor Theresa Brown, and Officers Almeida, Crafts, French, Gilblair, Hayden, Eddie Jacques, Jeffrey Jacques, Kelly, Maguire, Meunier, Rizzo, and Cory Swope. 29 the Sixth Amendment, and his right under the Eighth Amendment to be free from cruel and unusual punishment.33 33 He alleged: (1) (2) Officers intentionally had “confiscat[ed] [his] legal documents, law library books,” and other materials, arbitrarily had prevented him from using the library cart, and had interfered with his confidential communication with courts and his counsel, in violation of the First and Sixth Amendments and state law; (3) Officers arbitrarily had kept him in administrative segregation, in violation of his Fourteenth Amendment due process rights; (4) Officers had “persecuted” him in retaliation for his “filing grievances” and “complaining to officials about wrongful conduct,” in violation of the First Amendment; (5) Officers deliberately and repeatedly had “subjected [him] to visual body cavity searches without justification,” in violation of his Fourth, Eighth, and Fourteenth Amendment rights; (6) Officers intentionally had “fabricat[ed] reports knowing the results would lead to immediate segregation [and] use[d] administrative segregation . . . as a means to punish” him, in violation of his Fourteenth Amendment due process rights; Officers had confined unsanitary cell and had unsanitary food service, 30 him to an provided him in violation Following comprehensive that many discovery, dispositive of the motion. Mr. Goguen’s defendants The allegations filed defendants -- that a maintained officers had denied him use of his legal materials during his meeting with his attorney, had limited his access to the library cart, and had served him food in an unsanitary manner, for example -failed to state a claim for relief. summary claim judgment that he on had the merits suffered with The defendants moved for respect retaliation. to Mr. Goguen’s According to the defendants, it was “difficult to discern . . . which actions the Plaintiff allege[d] were retaliation”; but, with respect to the situations he had mentioned specifically, there was no evidence of a causal link retaliation.34 entitled to The summary between his defendants judgment grievances also with argued respect and the that to alleged they Mr. were Goguen’s Fourteenth Amendment Due Process claim and with respect to his Eighth Amendment claim. Turning to the Due Process claim, the of his Eighth and Fourteenth Amendment rights; and (7) Officers collectively had conspired to deprive him of his constitutional rights. R.24 at 51-54. 34 R.44 at 13–14. 31 defendants noted that, under Bell v. Wolfish, 441 U.S. 520 (1979), the key question was whether the conditions to which Mr. Goguen was subjected constituted “punishment” that required “‘an adjudication of guilt in accordance with due process of law.’”35 upon However, they continued, “not all restrictions placed a pretrial detainee are punishment”: a condition, restriction or disability “‘reasonably related to a legitimate governmental objective, . . . does not, without more, amount to “punishment.”’”36 placements initially in by reviewed They submitted administrative his within violations that, segregation of seventy-two because jail hours, Goguen’s were rules, the Mr. and justified then requirements of were due process were met. The defendants also maintained that they were entitled to summary related to judgment being on strip Mr. Goguen’s searched. constitutional They noted claims that, after balancing the interests of the institution against the privacy interests of the inmates, the Supreme Court in Bell had concluded that subjecting a pretrial detainee to visual bodycavity inspections following contact with individuals from 35 Id. at 16 (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). 36 Id. (quoting Bell, 441 U.S. at 539). 32 outside the institution did not violate due process. They argued that the strip searches to which Mr. Goguen was subjected while he was in administrative segregation similarly were justified by concerns of “‘[m]aintaining institutional security and preserving internal order and discipline.’”37 Alternatively, the defendants contended that they were entitled to qualified immunity on this claim. According to the defendants, “it [wa]s not that clearly established the officers involved in strip searching inmates, including those who are pretrial, upon entry or exit from a cell in A-pod were violating a constitutional right. Any mistake as to the constitutionality of their actions was reasonable.”38 2. After briefing was completed, the magistrate issued an exhaustive report and recommendation. In it, the magistrate judge summarized Mr. Goguen’s claims accordingly: Goguen maintains that he was subjected to intentional punishment based on his tendency to file grievances and speak out if he perceived what he believed to be a violation of his rights or a violation of prison policy, and also based on his litigation against correctional officers 37 Id. at 26 (quoting Bell, 441 U.S. at 546). 38 Id. at 27. 33 judge from another facility. The punishment consisted of excessive confinement in administrative segregation, unreasonable reclassification to maximum security, excessive strip searches and body cavity searches, confiscation of legal documents, interference with his communications with the court and with counsel, confiscation of personal property, placement in an unsanitary cell, unsanitary food practices, application of excessive force, and imposition of four-point restraints to frustrate access to legal materials. Goguen also advances a claim of [F]irst [A]mendment retaliation, another claim that has the ability to gather up multiple circumstances in support of one claim. In addition to advancing these two core theories, Goguen also itemizes a laundry list of smaller claims based on each distinct incident of which he complains.[39] The magistrate judge then reviewed each of these claims. With respect to Mr. Goguen’s claim that he was subjected to punitive strip searches, the magistrate judge explained that [t]he real issue here involves the imposition of punishment on a pretrial detainee, without adequate predeprivation process. Although Goguen’s move was classified as administrative segregation rather than disciplinary segregation, if the conditions of confinement imposed on him in A-pod crossed the punishment threshold, a claim is established for imposing prehearing punishment on a pretrial detainee.[40] 39 Goguen v. Gilblair, No. 2:12-cv-00048-JAW, 2013 WL 5407225, at *24 (D. Me. Sept. 25, 2013). 40 Id. at *29. 34 The magistrate judge noted that there were additional restrictions attendant to administrative segregation, but concluded these that it conditions, was in not necessary combination, “to cross decide the whether ‘punitive’ threshold for a pretrial detainee,” because Mr. Goguen’s placement in “multiple daily searches.”41 administrative strip segregation searches and also visual body involved cavity “This final condition,” the magistrate judge explained, “is sufficient to support a finding of punitive confinement, without due process, regardless of the fact that Somerset confinement.”42 County Critical calls to it the ‘administrative’ magistrate judge’s conclusion was the fact that, after Goguen eventually received process at the Jail, his actual sanctions typically paled in comparison to what he experienced while waiting for the process to unfold. For example, he was assessed three days of disciplinary segregation for urinating during count, but suffered approximately 13 days of what amounted to disciplinary segregation while awaiting his hearing.[43] 41 Id. 42 Id. 43 Id. 35 The magistrate conditions . . judge . therefore raise a concluded genuine issue that of “[t]hese material fact concerning the denial of due process.”44 Addressing the retaliation claim, the magistrate judge found that Mr. Goguen had established a causal link between his protected activity -- filing grievances -- and several actions of the defendants, such as placing Mr. Goguen in four-point restraints, destroying legal documents incident to a search, and subjecting Mr. Goguen to physical pain. The magistrate judge then reviewed her findings and concluded that, with respect to Officers Brown, Crafts, Hayden, Maguire, Swope, sufficiently and developed Jeffrey his Jacques, claims. As Mr. Goguen for the due had not process claim, however, she concluded that there was sufficient evidence to raise a genuine issue of material fact concerning those officers who either supported or directed the imposition of administrative segregation on Goguen prior to completion of the due process procedures outlined in Wolff v. McDonnell[45] and against 44 Id. 45 In Wolff v. McDonnell, 418 U.S. 539, 563 (1974), the Court held that “the minimum requirements of procedural due process” are satisfied by providing to prisoners “advance written notice of the claimed violation and a written statement of the 36 those officers who actually conducted or ordered Goguen to comply with the strip search and visual body cavity search process while Goguen was subject to so-called “administrative” segregation.[46] According to the magistrate judge, those defendants were Major Allen, Lieutenant Bugbee, Sergeant Plourd, and Officers Almeida, French, Gilblair, Meunier, and Rizzo. Turning to the retaliation claim, the magistrate judge determined that there is a genuine issue concerning those officers who supported or directed the imposition of administrative segregation on Goguen prior to completion of the due process procedures outlined in Wolff v. McDonnell, and the cumulative impact of disrupting court conferences, scattering legal papers throughout Goguen’s cell, imposing four-point shackles when Goguen accessed the library cart, and using unnecessary force. This claim is viable against Allen, Almeida, Bugbee, Gilblair, Kelly, Meunier, Plourd, and Rizzo.[47] The magistrate judge also addressed the defendants’ assertion of qualified immunity. She explained that her “recommendation that the due process and retaliation claims go forward is premised in large measure on the imposition of multiple daily strip searches and visual body cavity searches on factfinders as to the evidence relied upon and the reasons for the disciplinary action taken.” 46 Goguen, 2013 WL 5407225, at *32. 47 Id. 37 a pretrial detainee in advance of Wolff v. McDonnell process.”48 The magistrate judge rejected the defendants’ argument that established case law allowed for the routine strip searching of inmates upon leaving or entering a segregation unit: The cases do reflect that the use of such searches is permitted in the context of introduction to a facility, or transfer to segregated confinement, or upon return from contact visits. Bell v. Wolfish itself supports the point as even pretrial detainees were subject to a facility-wide policy of imposing strip searches following contact visits. The difference in this case, however, is that the issue concerns compliance with the Wolff v. McDonnell due process requirements before transferring a pretrial detainee in general population to punitive conditions in segregated confinement. A change in conditions that imposes multiple daily strip- and visual body cavity searches as the price of any out-of-cell liberty can reasonably be deemed punitive in comparison to the conditions of prison life existing in general population. The right of a pretrial detainee to receive due process prior to the imposition of prison-based punishment has been clearly established since the 1970s decisions in Wolff v. McDonnell and Bell v. Wolfish. Consequently, I recommend that the court not recognize qualified immunity in this [49] particular context. 48 Id. 49 Id. at *33. 38 In short, the magistrate judge determined that the record presented a genuine issue of triable fact as to (1) whether the defendants’ actions in transferring Mr. Goguen to administrative segregation were punitive in nature, especially considering the conditions in A-pod compared to the infractions which prompted his transfer, and (2) whether the officers’ motives in taking these and other actions were prompted by Mr. Goguen’s protected activity in violation of the First Amendment. The defendants judge’s recommendations. filed objections to the magistrate The district court, however, affirmed the recommended disposition in its entirety. The defendants timely appealed.50 50 In their notice of appeal, the defendants identified the following portions of the order as the bases for their appeal: (1) (2) the decision that Allen, Almeida, Bugbee, French, Gilblair, Kelly, Meunier, Plourd and Rizzo are not entitled to qualified immunity on the claim that they violated procedural due process by imposing administrative segregation on Goguen; and the decision that Allen, Almeida, Bugbee, Gilblair, Eddie Jacques, Kelly, Meunier, Plourd and Rizzo are not entitled to qualified immunity on the claim that they retaliated against Goguen in violation of his First Amendment rights; and 39 (3) the decision that Allen, Almeida, Bugbee, French, Gilblair, Eddie Jacques, Kelly, Meunier, Plourd and Rizzo are not entitled to qualified immunity on the conspiracy claim. R.76 at 1-2. In their summary judgment motion, however, the defendants urged that they were entitled to qualified immunity only with respect to Mr. Goguen’s claims related to the strip searches: Considering the Court’s recent decision in Florence [v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012)], it is not clearly established that the officers involved in strip searching inmates, including those who are pretrial, upon entry or exit from a cell in A-pod were violating a constitutional right. Any mistake as to the constitutionality of their actions was reasonable. R.44 at 27. In their objections to the report and recommendation, the defendants attempted to expand their qualified immunity argument to all of the claims on which they had maintained that they were entitled to judgment as a matter of law: The qualified immunity standard is very broad and protects “all but the plainly incompetent or those who knowingly violate the law.” In this case, a discussion of why there were not constitutional violations is made above. In addition, Defendants Allen, Almeida, Bugbee, French, Eddie Jacques, Gilblair, Kelly, Meunier, Plourd and Rizzo are entitled to qualified immunity because the right in question was not clearly established. R.70 at 13 (citations court, the defendants searches for detainees conclude that this omitted). In their briefing before this primarily focused on the use of strip in administrative segregation. We cannot sufficed to raise the issue of the 40 II. Our first task is to entertain the defendants’ appeal. determine whether we may Mr. Goguen argues that we have jurisdiction over an interlocutory appeal from the denial of summary judgment on qualified immunity grounds “only when the denial of the motion is based on ‘purely legal’ grounds.”51 He maintains therefore that we do not have jurisdiction over this appeal because the magistrate judge concluded that there were “question[s] of fact to be resolved by the factfinder” concerning the punitive nature of Mr. Goguen’s confinement.52 We agree that appellate jurisdiction is lacking. A. In Johnson v. Jones, 515 U.S. 304 (1995), the Supreme Court considered whether an appellate court could entertain “an defendants’ qualified immunity with respect to Mr. Goguen’s claims unrelated to strip searches. That said, while Mr. Goguen focused exclusively on this issue, he does not maintain that the defendants’ other qualified immunity arguments are subject to forfeiture. Consequently, we have considered the defendants’ arguments on qualified immunity that are not related directly to the strip searching of pretrial detainees in administrative segregation. For the reasons set forth infra at II.B., however, these arguments do not alter our conclusion that we lack jurisdiction over the present appeal. 51 Appellee’s Br. 5. 52 Id. (internal quotation marks omitted). 41 immediate appeal of a district court order denying [the defendants’] motion for summary judgment” when “[t]he order in question resolved record.” a fact-related Id. at 307. dispute about the pretrial Guided by the language of the statute authorizing appellate review (28 U.S.C. § 1291), the narrowness of the collateral order doctrine, and its decision in Mitchell v. Forsyth, 472 U.S. 511 (1985), in which it had recognized the denial of qualified immunity as an appealable order, the Court concluded immunity that “a defense, defendant, may not entitled appeal a to invoke district a qualified court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson, 515 U.S. at 319–20. Beginning with Stella v. Kelley, 63 F.3d 71 (1st Cir. 1995), we have explored the contours and confines of Johnson’s holding. In Stella, we observed that, on the one hand, a district court’s pretrial rejection of a proffered qualified immunity defense remains immediately appealable as a collateral order to the extent that it turns on a pure issue of law, notwithstanding the absence of a final judgment. On the other hand, a district court’s pretrial rejection of a qualified immunity defense is not immediately appealable to the extent that it turns on either an issue of fact or an issue perceived by the trial court to be an issue of fact. In such a situation, the movant 42 must await the entry of final judgment before appealing the adverse ruling. The bottom line, then, is simply this: a summary judgment order which determines that the pretrial record sets forth a genuine issue of fact, as distinguished from an order that determines whether certain given facts demonstrate, under clearly established law, a violation of some federally protected right, is not reviewable on demand. Id. at 74 (emphasis added) (citations omitted).53 We had an opportunity to apply Johnson again in Díaz v. Martínez, 112 F.3d 1 (1st Cir. 1997). In that case, the plaintiffs sued defendant Díaz, a rogue police officer, and his supervisor, Tomás Vázquez Rivera, for the personal injuries and the wrongful death of a family member stemming from defendant Díaz’s use of his weapon. qualified immunity Vázquez moved for summary judgment on grounds, motion, and Vázquez appealed. the district court denied the We noted that, “under Johnson and Stella, . . . a defendant who, like Vázquez, has unsuccessfully sought summary judgment based on qualified immunity is permitted to appeal the resultant denial on an interlocutory basis only to 53 See also Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (“Johnson reaffirmed that summary judgment determinations are appealable when they resolve a dispute concerning an ‘abstract issu[e] of law’ relating to qualified immunity.” (alteration in original)). 43 the extent that the qualified immunity defense turns upon a ‘purely legal’ question.” Id. at 3 (emphasis added). We concluded that Vázquez’s appeal “withers in the hot glare of these precedents.” Id. at 4. We explained: [W]e are left with Vázquez’s asseveration that the district court erred in denying his motion for summary judgment because, regardless of legal theory, the evidence was insufficient to establish deliberate indifference on his part, and, thus, he was entitled (at the least) to qualified immunity. But Judge Laffitte rejected this argument on the basis that the record contained controverted facts and that, if a factfinder were to resolve those disputes favorably to the plaintiffs, he could then find that Vázquez’s supervision of the disciplinary affairs bureau was so pathetic that his conduct constituted deliberate indifference to the plaintiffs’ rights. Since Vázquez does not argue that the facts asserted by the plaintiffs, even if altogether true, fail to show deliberate indifference –- he argues instead what his counsel termed at oral argument “the absence of facts,” i.e., that the facts asserted by the plaintiffs are untrue, unproven, warrant a different spin, tell only a small part of the story, and are presented out of context –- the district court’s determination is not reviewable on an interlocutory appeal. Id. at 4-5 (emphasis added) (footnote omitted). Two of our recent opinions speak directly to this issue in factual scenarios closely akin to that presented here. The first of these is Cady v. Walsh, 753 F.3d 348 (1st Cir. 44 2014). son, In that case, Cady brought an action on behalf of her Paul Galambos, after Galambos died “from self-inflicted injuries that he suffered while he was a pretrial detainee at the Cumberland County Jail (CCJ).” Id. at 349. Cady alleged that the defendants had been deliberately indifferent to her son’s medical needs while he was detained at CCJ; the defendants, in response, filed a motion for summary judgment, in which they immunity. motion, maintained that they were protected by qualified The district court, however, disagreed and denied the reasoning “that there remained material and disputed issues of fact as to the claims against all three individuals which precluded the grant of immunity.” Id. at 350. The defendants subsequently appealed. Before this court, Cady argued that, under Johnson, we lacked jurisdiction to review the appeal. We therefore began our analysis of the jurisdictional issue with Johnson: Because the “qualified immunity defense is, in part, an immunity from trial as well as an immunity from damage awards,” a pretrial denial of the defense may, in some cases, be immediately appealable. . . . The Johnson Court held that a district court’s conclusion that a summary judgment record in a qualified immunity case raised a genuine issue of fact as to whether the defendants were involved in the alleged events was not immediately appealable under the collateral order doctrine. 45 Johnson relied in part on the “separability” requirement of the collateral order doctrine. The Court reasoned: Where . . . a defendant simply wants to appeal a district court’s determination that the evidence is sufficient to permit a particular finding of fact after trial, it will often prove difficult to find any such “separate” question -one that is significantly different from the fact-related legal issues that likely underlie the plaintiff’s claim on the merits. Questions of “evidentiary sufficiency” -i.e., whether the record is capable of supporting a particular factual finding, rather than a particular legal conclusion -“are not sufficiently distinct to warrant interlocutory appeal.” If appellate courts were to overlook this separability problem in the context of fact-based qualified immunity appeals and accept jurisdiction, those courts “may well be faced with approximately the same factual issue again, after trial,” and interlocutory review would prove an unwise use of appellate resources. Id. at 358–59 (citations omitted) (quoting Johnson, 515 U.S. at 314, 316–17; Mlodzinski v. Lewis, 648 F.3d 24, 27 (1st Cir. 2011)). In Cady, we faulted the defendants for failing to “develop the argument that, even drawing all the inferences as the district court concluded a jury permissibly could, they are 46 entitled to judgment as a matter of law.” Id. at 359–60. We acknowledged that there had been cases in which the defendants had accepted as true the plaintiffs’ version of the facts (and the reasonable inferences exercised jurisdiction. at 28). from those facts), and we had Id. at 360 (citing Mlodzinski, 648 F.3d The defendants in Cady, however, had not done so; instead, their briefing disputed “both the facts identified by the magistrate judge as well as the inferences proffered by the plaintiff and deemed reasonable by the magistrate judge.” Id. We explained: With respect to each individual defendant, the defendants’ briefing objects to the way the district court construed the facts and argues that the district court and magistrate judge erred in their conclusions as to what a reasonable juror could find. Those fact-based arguments are inextricably intertwined with whatever “purely legal” contentions are contained in the defendants’ briefs: were we to attempt to separate the legal from the factual in order to address only those arguments over which we might permissibly exercise jurisdiction, we simply would not know where to begin. . . . [T]he defendants’ brief repeatedly attacks the district court’s factual conclusions, making no effort to separate fact-based arguments from “purely legal” ones. Id. The defendants’ “fact-based challenge[s],” we explained, “would . . . not defeat jurisdiction if [they] were advanced in the alternative. But nowhere in the defendants’ brief does 47 there appear entitled to any developed summary argument judgment even that if the the conclusions about the record were correct.” defendants district are court’s Id. at 361. We therefore concluded that, “[b]ecause the defendants fail[ed] to pose even the qualified immunity question in a manner that would permit us to conclude that ‘the answer to it does not depend upon whose account of the facts is correct,’ we lack[ed] the authority to provide an answer.” Id. (quoting Stella, 63 F.3d at 75). Penn v. Escorsio, 764 F.3d 102 (1st Cir. 2014), petition for cert. filed, 83 U.S.L.W. 3586 (U.S. Dec. 15, 2014) (No. 14-709), is our latest substantive decision on the subject. As with Cady, Penn involved allegations that corrections officers were deliberately indifferent to the serious medical needs of a pretrial detainee, Lalli, and the defendant officers had moved for summary judgment on qualified immunity grounds. The defendants did not dispute that “clearly established law at the time Lalli attempted suicide dictated officers must take some reasonable measures to thwart a known, substantial risk that a pre-trial detainee will attempt suicide.” Id. at 105. “Rather,” we explained, Defendant Winslow argues he was not deliberately indifferent, and therefore did 48 not violate Lalli’s rights because “the summary judgment record does not support finding a genuine issue as to whether Winslow actually knew of the risk [that Lalli would attempt suicide] or whether Winslow was deliberately indifferent to that risk.” Similarly, Defendant Escorsio argues she “was not deliberately indifferent to Lalli’s Fourteenth Amendment rights because she took some action to avert the risk of harm.” But these discussions “nowhere develop the argument that, even drawing all the inferences as the district court concluded a jury permissibly could, they are entitled to judgment as a matter of law.” Instead, Winslow’s arguments take issue with the district court’s factual determinations as to his knowledge of risk and his efforts -- or lack thereof -- to abate that risk. Similarly, Escorsio’s arguments dispute the court’s factual finding that she may have taken essentially no action to avert the risk Lalli would attempt suicide when she returned him to Cell 135. As we recently stated in Cady, these “fact-based challenge[s] would, of course, not defeat jurisdiction if . . . advanced in the alternative. But nowhere in the defendants’ brief does there appear any developed argument that the defendants are entitled to summary judgment even if the district court’s conclusions about the record were correct.” As such, we have no basis on which to exercise jurisdiction over whether Defendants violated Lalli’s clearly established rights through deliberate indifference to the risk that he would attempt suicide. Id. at 111 (alterations in original) (citations omitted). 49 (footnote omitted) B. Our review of the defendants’ briefing before this court convinces us that their arguments suffer from the same infirmities as those of the defendants in Stella, Díaz, Cady, and Penn. In their recitation of the facts and substantive arguments, the defendants repeatedly ignore evidence, and reasonable inferences therefrom, on which the magistrate judge based her conclusion that there were genuine issues of material fact concerning whether the defendants’ actions were punitive and retaliatory. By way acknowledge the Major Allen both means of of example direct were retaliating only, evidence using against the that defendants Officer administrative Mr. grievances and use of the courts.54 Goguen fail Rizzo segregation for his to and as filing a of Moreover, with respect to the incident on June 23, the defendants never acknowledge three key pieces of evidence that point to the conclusion that 54 See R.83 (Goguen Dep.) at 62 (recounting Officer Rizzo’s statement that he would “‘do whatever it takes in my personal power to make sure you spend the rest of your time in A[-] pod’”); id. at 17 (relating Major Allen’s disruption of Mr. Goguen’s call with the federal magistrate judge and placement of Mr. Goguen in A-pod following Major Allen’s discovery that Mr. Goguen had been threatening officers with lawsuits). 50 Mr. Goguen’s initial placement in administrative segregation was retaliatory: (1) Mr. Goguen testified that he did nothing to interfere with the cell search or provoke the officers involved, but it was Officer Gilblair who yelled and cursed at him; (2) the officers cited this (disputed) lack of cooperation as the reason for transferring Mr. Goguen to A-pod; and (3) the search took place Officer inmate. the Gilblair The retaliatory same with day respect defendants placement that in also Mr. to Goguen the ignore testified complaint evidence administrative throughout Officer Rizzo’s their order to brief take that segregation the top Mr. a fellow pointing the dispute over the July 15 bunk assignments. repeat of against to a following The defendants Goguen bunk. Mr. however, explicitly refuted this in his deposition. refused Goguen, Yet, the basis for Mr. Goguen’s disciplinary action -- and his placement in A-pod -- was his failure to obey an order. Finally, in addition to their failure to acknowledge critical evidence, the defendants’ brief explicitly questions the bases for some of the district court’s findings.55 Like the defendants in Cady, it is 55 See Appellants’ Br. 38–39 (“While the Recommended Decision stated that Allen had direct oversight or involvement related to one or more impositions of administrative segregation, Rec. Dec., p.45, there is no evidence to this effect.”); id. at 41 51 clear that “the defendants’ briefing objects to the way the district court construed the facts.” make no “‘purely legal’ 753 F.3d at 360. contentions” separate from these factual assertions. that we are They able to Id. After Mr. Goguen raised the issue of our jurisdiction in his responsive brief, the defendants did acknowledge the rule that they court’s could judgment maintained, seek immediate “‘turn[ed] however, that, on review an “[i]f only issue the if of denial the district law.’”56 of They qualified immunity was based on factual issues, the decision ‘is still reviewable if qualified immunity is warranted on the plaintiff’s version of the facts together with facts that are not disputed.’”57 (“The basis for the due process claim against Gilblair and Meunier is that they allegedly wrote false reports based on the cell search on June 23, 2011, that resulted in Goguen being put in administrative segregation. Rec. Dec., p.52. There is no evidence to support this allegation, though.”); id. at 48 n.6 (“While the Recommended Decision states that the photographic evidence supports Goguen’s contention that one cannot watch a cell search from downstairs . . . , Rec. Dec., p.9, it is unclear how the court made this determination from this one photograph especially when it is unknown where Goguen’s cell was located.”). 56 Reply Br. 6 (quoting Maldonado v. Fontanes, 568 F.3d 263, 267 (1st Cir. 2009)). 57 Id. (quoting Cruz-Gómez v. Rivera-Hernández, 444 F.3d 29, 33 n.5 (1st Cir. 2006) (emphasis omitted)). 52 The problem for the defendants is that, in their reply, they did not change tack, accept the district court’s factual findings, and make an argument based on those findings. Instead, they maintained that Mr. Goguen’s recitation of facts should be ignored because it relied, in large part, on the unsworn allegations set forth in his second amended complaint. It is true that Mr. Goguen’s recitation of facts has its own infirmities.58 findings on The district court, however, did not rest its Mr. Goguen’s unsworn allegations, but, instead, “looked to Goguen’s deposition to determine whether he ha[d] offered any assertions.”59 sworn testimony to support his unsworn factual Indeed, the defendants characterize many facts as 58 We agree with the defendants that unsworn allegations contained in a complaint, without more, are not enough to oppose a properly supported motion for summary judgment. See, e.g., Ruiz-Rosa v. Rullán, 485 F.3d 150, 156 (1st Cir. 2007). We similarly reject Mr. Goguen’s argument that we should accept the facts set forth in his second amended complaint because, “had Mr. Goguen understood the complicated civil rules, especially regarding summary judgment, he would certainly have styled his Second Amended Complaint as a Verified Complaint, thus muting Defendants’ refrain that his averments are unsupported by sworn testimony.” Appellee’s Br. 8. We have long held, and oft repeated, that “pro se status does not free a litigant in a civil case of the obligation to comply with procedural rules.” Ruiz Rivera v. Riley, 209 F.3d 24, 28 n.2 (1st Cir. 2000). 59 Gilblair, 2013 WL 5407225, at *3. 53 being supported only by unsworn statements, when, in fact, they find support in Mr. Goguen’s deposition testimony.60 The Supreme Court held in Johnson, and we reiterated in Cady, that “a district court’s conclusion that a summary judgment record in a qualified immunity case raise[s] a genuine issue of fact as to whether the defendants were involved in the alleged events collateral [is] order not immediately doctrine.” Cady, appealable 753 F.3d under at the 358–59. Similarly, on an interlocutory appeal, we are not at liberty to reexamine genuine a district issue of court’s material determination fact as to motivation in taking specific actions. a demonstrates, “overlook[ing] this there government is a actor’s See Valdizán v. Rivera- Hernandez, 445 F.3d 63, 65 (1st Cir. 2006). here that As our discussion separability problem” would leave us mired in numerous factual disputes that we well may face again after trial. Cady, 753 F.3d at 359. Under such 60 Among these are allegations that, on June 18, 2011, Mr. Goguen both filed a witness statement in support of another inmate’s complaint against Officer Gilblair and filed his own grievance against Officer Gilblair, see R.83 (Goguen Dep.) at 47; that Officer Gilblair failed to return property, books, and legal papers that she had collected from Mr. Goguen, see id. at 49; and that Major Allen placed Mr. Goguen in A-pod following his telephone conference with the magistrate judge, see id. at 16– 17. 54 circumstances, the collateral order doctrine does not allow, and concern for the wise use of judicial resources warns against, the exercise of appellate jurisdiction.61 61 In their brief, the defendants urge that we should approach Officer Kelly differently because “[i]t appears the claims against Kelly were inadvertently left in this case.” Appellants’ Br. 53. We think that the constraints placed on our jurisdiction prevent our addressing this assertion here. According to the defendants, the magistrate judge concluded that “Kelly should be entitled to summary judgment because ‘the only thing that would keep Kelly in this case is the unsanitary cell episode, which was not exhausted administratively.’” Id. at 54 (quoting Goguen, 2013 WL 5407225, at *30). We do not believe that this is a fair reading of the magistrate judge’s report. The quote on which the defendants rely is part of her discussion of Mr. Goguen’s “Conspiracy” allegation. See Goguen, 2013 WL 5407225, at *30 (observing that “the overall facts and circumstances would permit a finding of concerted action sufficient to infer an agreement among some of the defendants to deprive Goguen of his rights,” but that “the facts developed . . . do not warrant sweeping” other officers into the conspiracy and further noting that “the only thing that would keep Kelly in this case is the unsanitary cell episode, which was not exhausted administratively” (emphasis added)). At several other points in her opinion, however, the magistrate judge notes Officer Kelly’s involvement in the alleged retaliatory actions against Mr. Goguen. See id. at *25 (“Goguen claims violations of the First Amendment and the Sixth Amendment related to the right to access the court and counsel, based on the seizure of legal papers and books, denial of law library access and materials, and interference with communications with the court and with counsel, asserted against Defendants Allen, Bugbee, Gilblair, Jacques, Kelly, Maguire, Meunier, Plourd, Rizzo, and Swope. . . . [F]acts and circumstances related to throwing Goguen’s legal papers about, opening his mail, interrupting his conferences with the court, and so forth, are relevant to the core claims of imposing punishment on a pretrial detainee without due process of law and of retaliating against a 55 pretrial detainee for pursuing petitions in redress of grievances.” (emphasis added)); see id. at *27 (noting that the facts related to the “unsanitary cell” incident “form part of the facts and circumstances related to Goguen’s core due process claim against Meunier and his retaliation claim against Meunier and Kelly”). Although the evidence implicating Officer Kelly is not particularly well-developed in the record, we do note that the magistrate judge specifically said that there was a genuine issue of triable fact as to her role: As for the retaliation claim, . . . there is a genuine issue concerning those officers who supported or directed the imposition of administrative segregation on Goguen prior to completion of the due process procedures outlined in Wolff v. McDonnell, and the cumulative impact of disrupting court conferences, scattering legal papers throughout Goguen’s cell, imposing four-point shackles when Goguen accessed the library cart, and using unnecessary force. This claim is viable against Allen, Almeida, Bugbee, Gilblair, Kelly, Meunier, Plourd, and Rizzo. Id. at *32 (emphasis added). The argument that Officer Kelly should be granted summary judgment is therefore a matter most appropriately left to the district court in the course of further proceedings on remand. We note also that the defendants’ arguments with respect to Officer Kelly suffer from the same infirmities as their more general arguments: They do not acknowledge the sworn testimony in the record that supports the magistrate judge’s findings. See R.83 (Goguen Dep.) at 89–90 (describing Officer Kelly’s actions in taking Mr. Goguen’s legal material when he was going to meet with counsel). Because Officer Kelly’s arguments, like those of the other defendants, are fact-based, they are not properly before this court on interlocutory appeal. 56 Conclusion The defendants have not come forward with any purely legal issues that call into question the district court’s denial of their motion grounds. for summary judgment qualified immunity Consequently, we do not have jurisdiction over the defendants’ appeal. The appeal jurisdiction. APPEAL DISMISSED 57 on is dismissed for want of
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