Cossette v. Poulin

• Decision Date: 28 August 2008
• Docket Number: Civil No. 06-cv-347-JL.
• Citation: 2008 DNH 162,573 F.Supp.2d 456
• Parties: Tom COSSETTE v. Angela POULIN, Dennis Cox, and Greg Crompton.
• Court: U.S. District Court — District of New Hampshire

573 F.Supp.2d 456

2008 DNH 162

Tom COSSETTE v. Angela POULIN, Dennis Cox, and Greg Crompton.

Civil No. 06-cv-347-JL.

United States District Court, D. New Hampshire.

August 28, 2008.

Tom Cossette, Berlin, NH, pro se.

Deborah B. Weissbard, NH Attorney General's Office, Concord, NH, for Defendants.

ORDER

JOSEPH N. LAPLANTE, District Judge.

Plaintiff pro se Tom Cossette, an inmate at the Northern Correctional Facility, claims that the defendants retaliated against him for exercising his First Amendment rights. Cossette alleges that he was removed from his job as a clerk in the prison law library in retribution for giving a written statement to another inmate in support of his planned lawsuit challenging an action taken by the prison librarian, defendant Angela Poulin. Poulin and her co-defendants, who are a major and the former warden at the facility, have moved for summary judgment.

This court has jurisdiction over this matter under 28 U.S.C. § 1332 (federal question), and heard oral argument on this motion, in which Cossette participated by videophone, on August 26, 2008. Based on the parties' arguments there and in their briefing, including the supplemental memoranda filed in response to this court's prior order, the court grants the defendants' motion for summary judgment.

I. Applicable Legal Standard

Summary judgment is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In making this determination, the "court must scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party's favor." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003). The following background facts are set forth in accordance with this standard.

II. Background

Beginning in June 2005, Cossette worked for Poulin as a clerk in the prison law library, which, among other resources, offers computers that inmates may use to perform legal research. As an inmate law clerk, Cossette was responsible for assisting other inmates with their research, but was not permitted to do that research on their behalf. As compensation, he received $1.50 in wages each weekday—sixty-five cents more than the eighty-five cents in daily allowance given to inmates who do not work—plus up to an additional one dollar bonus each day at Poulin's discretion. During the first several months of Cossette's employment, Poulin reprimanded him on multiple occasions for socializing with or performing research for other inmates while they were in the library, in violation of prison policies. Cossette, however, says that in each instance he was able to provide a satisfactory explanation for his behavior.

In early December 2005, Poulin spoke to Cossette and another inmate, Allen Belton, several times for "talking too much" in the library, though Cossette, again, says that he explained on each occasion that he was simply answering Belton's research questions. It was around this time, Poulin recalls, that she sensed that a group of inmates, including Belton and, ultimately, Cossette, were beginning to defy her authority openly.

Cossette attests that, in March 2006, he noticed that Poulin had overcharged Belton for a "copy/printout request" by producing more copies than he had asked for. Poulin, for her part, recalls that Belton had instructed the legal research software on one of the library computers to print some 268 pages of material in a large font, and that Poulin had simply counted the pages and charged Belton's inmate account accordingly.

In any event, Belton became angry about the charges, claiming that "the computer had made a mistake." He also asked Cossette to write a statement for Belton to use "as a basis for [Cossette's] testimony in legal proceedings to recoup the overcharged amount." So Cossette wrote the following:

I Thomas P. Cossette state that I was present when Allen Belton sent the document he was working on to print and to the best of my knowledge correctly followed all print procedures.

Cossette signed the statement and dated it March 6, 2006.

What happened next is a matter of considerable disagreement. Poulin, who says the printing charge dispute actually did not occur until March 23, says that during her discussion with Belton on that day, Cossette "became increasingly confrontational and argumentative" toward her, making her feel unsafe. Poulin adds that, a few days later, she noticed Cossette talking to Belton and another inmate who were upset that the library had opened forty minutes later than usual. Because she perceived that Cossette. "was feeding into the complaints and anger some of these inmates had toward the library" and herself, Poulin explains, she warned Cossette "not to feed into other inmates' issues." Poulin denies that this comment was intended to refer to the written statement Cossette had given Belton.

Cossette, however, says that, in late March, Poulin came upon the written statement in a packet of "legal material concerning the overcharging" Belton had submitted for photocopying. Cossette alleges that Poulin then called him into her office, instructed him that "as a clerk [he] was not able to write statements for other inmates about what happens during [his] employment," and ordered him "to recant the statement." Cossette says that when he refused, invoking his "right to submit a statement," Poulin, who was "extremely upset," ordered him out of her office. It was during this exchange, Cossette maintains, that Poulin upbraided him for "adding fuel to the fire" of other inmates' gripes about her and the library.

Cossette continued working in the library until April 10, when Poulin informed him that he would be transferred to another job within the prison. The parties also dispute what happened during this exchange. Poulin says she explained to Cossette that she "had to warn him too many times about chatting and doing things for other inmates," characterizing the incident of March 23, "when Cossette became argumentative and confrontational," as "the final straw." Cossette, however, says that Poulin told him, "although there had been minor issues of chatting while in the law library, the final straw was the statement" he had written for Belton, which, according to Cossette, Poulin described as "the deciding factor" in her choice to transfer him.

The parties agree that, to accomplish the transfer, Poulin placed Cossette on "no job available" status, rather than "reduced pay status," which the defendants describe as the equivalent of a termination for cause within the prison employment system: while an inmate on reduced pay status cannot apply for another job for ninety days, an inmate on no job available status can. Cossette, in fact, began another job elsewhere in the prison on June 16, for a daily wage of one dollar, and by November 1 was earning $1.50 per day, plus up to one dollar each day in bonuses, just as he had working for Poulin. And Cossette had continued earning his wages as a library clerk until April 27, when his "no job available" status became effective.

Nevertheless, Cossette immediately challenged the transfer through the prison's inmate grievance process, where it was affirmed by defendants Cox and Crompton. Having thus exhausted his administrative remedies, see 42 U.S.C. § 1997e(a), Cossette commenced the instant suit, alleging that Poulin transferred him in retaliation for exercising his rights under the First Amendment and that Cox and Crompton had condoned that action by rejecting the grievances.

III. Analysis

Because "constitutional violations may arise from the deterrent, or chilling, effect of governmental efforts that fall short of a direct prohibition against the exercise of First Amendment rights, ... the government may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech even if he has no entitlement to that benefit." Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 674, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (internal citations, quotation marks, and alterations omitted). So, even though an inmate generally has no "constitutional right to ... a particular job assignment, prison officials must not ... deny him a job assignment in retaliation for the exercise of a constitutionally protected activity." Beauchamp v. Murphy, 37 F.3d 700, 710 (1st Cir.1994) (Bownes, J., dissenting); see also, e.g., Dupont v. Saunders, 800 F.2d 8, 10-11 (1st Cir.1986); Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir.2005); Vignolo v. Miller, 120 F.3d 1075, 1077-78 (9th Cir.1997).

To prevail on a retaliation claim, an inmate must establish "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action."¹ Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (internal quotation marks omitted); see also Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.2008); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001); Thaddeus-X v Blatter, 175 F.3d 378, 386-87 (6th Cir. 1999) (en banc); Starr v. Dube, 2007 DNH 153, 8, 2007 WL 4320743. If the plaintiff succeeds in this showing, the burden shifts to the defendant to prove, by a preponderance of the evidence, that it would have taken the allegedly retaliatory action even in the absence of the protected conduct. See McDonald v. Hall, 610 F.2d 16, 18 (1st Cir.1979) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)); see also Starr, 2007 DNH 153, 8.

In moving for summary judgment, the defendants argue, among other things, that (1) Cossette did not engage in protected speech by providing Belton with the written statement, because, in doing so, Cossette...