Goguen v. Allen , 780 F.3d 437 ( 2015 )

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 and
Wheeler & Arey, P.A., were on brief, for appellants.
Michael J. Waxman for appellee.
* Of the Seventh Circuit, sitting by designation.
March 12, 2015
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RIPPLE, Circuit Judge. Robert Goguen is a former
pretrial detainee at the Somerset County Jail (“SCJ”). He
brought this action alleging that various correctional officers
at SCJ violated his rights under the First, Eighth, and
Fourteenth Amendments by inflicting punishment on him without
due process of law and by retaliating against him for filing
grievances against members of SCJ’s staff. The defendant
officers and administrators moved for judgment on the pleadings,
summary judgment on the merits, and also summary judgment on the
basis of qualified immunity. The district court granted summary
judgment to several defendants who had not participated
personally in the alleged violations. With respect to the
remaining defendants, the court concluded that there were
genuine issues of material fact concerning the defendants’
actions and motivations that precluded summary judgment. These
remaining defendants timely appealed.
We conclude that the defendants’ appeal must be
dismissed for want of appellate jurisdiction. The defendants’
arguments on appeal take issue with the district court’s factual
assessments and do not present a pure issue of law for this
court’s consideration. Consequently, following our holdings in
Cady v. Walsh, 753 F.3d 348 (1st Cir. 2014), and Penn v.
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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. From March 15, 2011, until June 23,
2011, the SCJ housed Mr. Goguen in its E-pod, a general
population area in which inmates are allowed some freedom of
movement. In contrast, SCJ’s A-pod, which houses inmates in
administrative segregation, inmates in disciplinary segregation,
and inmates who are classified as maximum security, imposes
significantly greater restrictions. Mr. Goguen’s allegations
center on his repeated placement in A-pod, ostensibly for
administrative segregation. We therefore discuss, in some
detail, the conditions of confinement in A-pod.
Inmates in administrative segregation endure a
significantly restrictive environment. While in administrative
segregation, inmates are allowed out of their cells for one hour
per day, five days per week, for recreation. “Recreation” takes
place in a caged area that is approximately five feet wide by
ten feet long. Inmates in administrative segregation leave
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their cells to shower three times per week; each inmate
generally is allowed ten to fifteen minutes to shower. Once a
week, inmates in administrative segregation are allowed out of
their cells to make a telephone call.
According to the defendants, any inmate housed in A-
pod, whether placed there for administrative segregation, for
disciplinary segregation, or because of their maximum-security
classification, are strip searched every time they enter or
leave their cells.   All cells in A-pod are searched at least once
per day, compared to cells in E-pod, which are searched on a
monthly basis. Additional cell searches also may be conducted
when SCJ staff members receive information that an inmate
possesses contraband. When a cell search is conducted, the
inmate housed in that cell is strip searched prior to being
removed from the cell.
When an inmate is taken to administrative segregation,
all of the inmate’s property is put into a bag and taken to the
property room. If an inmate in administrative segregation
requests his legal materials, arrangements are made to provide
the legal materials to the inmate when the property officer is
on duty. When an inmate is placed back in general population,
the inmate’s property is returned by the property officer.
‐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 hold a hearing to review the administrative-
segregation placement. Another review of administrative-
segregation status is done within seven days (every Friday) to
determine if continued placement is needed; review can be
performed by any day shift commander.
1. June 23 Disciplinary Charges
The incidents relevant to Mr. Goguen’s claims begin on
June 23, 2011, when Officer Jennifer Gilblair searched
Mr. Goguen’s cell in E-pod for an envelope. Officer Gilblair
asked Officer Craig Meunier not to let Mr. Goguen upstairs while
she was searching the cell. Mr. Goguen was allowed to watch the
cell search from downstairs. Based on the configuration of the
SCJ, however, the district court concluded that one actually
cannot watch a cell search from downstairs. The defendants
dispute whether the district court reasonably could have reached
this conclusion based on the evidence before it. Officer
Gilblair’s search uncovered commissary items including one
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plastic soap dish, one bar of soap, one plastic bowl, one white-
colored shower shaver, and one bottle of shampoo. It is
undisputed that, due to a lack of funds, Mr. Goguen could not
have purchased these items; consequently, Officer Gilblair wrote
a disciplinary report and a notice of infraction for a violation
of C–04 of the SCJ Inmate Discipline Policy, “Giving, Receiving,
or Swapping.”1 Mr. Goguen maintains that there was no legitimate
reason to search his cell for an envelope because legal
envelopes are supplied for free by the commissary.
According to Officer Meunier, Mr. Goguen responded to
the search of his cell by arguing and swearing at him. Officer
Meunier therefore wrote a disciplinary report concerning
Mr. Goguen’s conduct, in which he charged Mr. Goguen with a
violation of B–24, “Interfering,” and B–12, “[P]rovocation.”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 the story. Officer Ducharme provided Mr. Goguen a
notice of infraction, which informed him of the charge.
Mr. Goguen admitted that the items found in his cell were not
issued to him, but claimed that they either were left in the
cell, given to him by another inmate, or left behind in the
shower; he claimed that he was unaware that he could not have
them.
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 hearing. Officer Crafts referred both of
Mr. Goguen’s June 23 infractions for disciplinary hearings.
Mr. Goguen identified his witnesses by description and cell
location, but not by name. He also did not put in writing the
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questions that he wanted witnesses to answer. As a result,
neither Officer Crafts, nor the hearing officer, pursued any
witness statements on Mr. Goguen’s behalf.
A hearing was conducted on July 1 by Officer
Eddie Jacques. At the hearing, Officer Jacques heard
Mr. Goguen’s testimony, viewed still photos, reviewed the
officers’ incident reports, and found Mr. Goguen guilty of
“Giving, Receiving, or Swapping,” for which he received a verbal
reprimand. Officer Jacques also found Mr. Goguen guilty of
“Interfering” and “Provocation,” for which he received a verbal
reprimand and a $10 fine. Officer Eddie Jacques stated in his
reports that he had assessed zero days of disciplinary
segregation. Mr. Goguen appealed the decision concerning
interfering and provocation to the administrator of SCJ,
Major David Allen, but the decision was affirmed.
While these proceedings were ongoing, Mr. Goguen
stayed in A-pod. His placement first was reviewed by non-
defendant Lieutenant Campbell on June 26, 2011.
Lieutenant Campbell determined that Mr. Goguen should remain in
administrative segregation, and Mr. Goguen received a notice
that he would be kept in administrative segregation and his
placement again would be reviewed on July 1, 2011.
‐10‐
On July 1, 2011, a hearing was held to review
Mr. Goguen’s administrative-segregation status. Lieutenant
Darlene Bugbee was the hearing officer, and Officer French and
non-defendant Officer Welsh served as committee members.
Mr. Goguen attended and testified at the hearing, after which
the committee determined that Mr. Goguen should remain in
administrative segregation until a classification committee
could review his security status.
On July 6, 2011, another administrative segregation
hearing occurred. This time, Lieutenant Bugbee was the hearing
officer; Sergeant Plourd and Officer Meunier served as committee
members. Following the hearing, at which Mr. Goguen testified,
the committee determined that he should be removed from
administrative segregation because classification had reviewed
Mr. Goguen’s status and had determined that he still should be
classified as a medium-security inmate. Mr. Goguen therefore
was released from administrative segregation and returned to E-
pod, where he remained until he was transported to the Penobscot
County Jail on July 10, 2011.
2. July 15, 2011 Incident
After Mr. Goguen returned to SCJ, Mr. Goguen again was
placed in A-pod on July 15, 2011, as a result of a dispute
‐11‐
concerning his bunk assignment. During cell reassignments,
Mr. Goguen was assigned an upper bunk. Mr. Goguen, however,
told Officer Michael Rizzo that he needed a lower bunk. When
Officer Rizzo inquired of the medical department whether
Mr. Goguen had a bottom-bunk restriction, the medical department
responded that he did not. The parties give vastly different
accounts of the events that followed. According to the
defendants,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. See
Appellants’ Br. 27–28.
6 R.56-11 (SCJ Policy-“Inmate Discipline”) at 71.
7 R.83 (Goguen Dep.) at 58–59.
‐12‐
Mr. Goguen’s placement in administrative segregation
was reviewed by Lieutenant Campbell on July 18, 2011. He
determined that Mr. Goguen should remain in administrative
segregation. Mr. Goguen received notice of the decision and
notice that his placement would be reviewed on July 22, 2011.
On July 22, 2011, a hearing was held to review Mr. Goguen’s
administrative segregation status; Lieutenant Campbell served as
the hearing officer, and non-defendant Officers Jewell and
Madore served as committee members. At the hearing, Mr. Goguen
did not dispute that he told Officer Rizzo that he should be
taken to A-pod if he was not going to be assigned a lower bunk;
he does dispute that he was disruptive, that he argued, and that
he refused an order, which were the bases for his transfer to A-
pod.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 to E-pod,
Officer Rizzo approached Mr. Goguen and stated: “‘I will make
sure that you do not come back to this block. I will do
whatever it takes in my personal power to make sure you spend
the rest of your time in A[-]pod. I don’t care who I have to
talk to.’”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. When Mr. Goguen tried to explain that he
was on the telephone with a federal magistrate judge,
Major Allen “took the phone from [Mr. Goguen’s] hand, hung the
phone up, told [Mr. Goguen] to put [his] hands behind [his]
back, [and] [Mr. Goguen] was handcuffed, shackled and escorted
to A[-]pod.”12 Once there, Major Allen informed him that he
(Mr. Goguen) would not be threatening other officers with
10 Id.11 R.83 (Goguen Dep.) at 62.
12 Id. at 17.
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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 for a violation of B–13,
“Provocation,” for arguing. These charges were later dismissed.
The record does not contain either the report or the dismissal.
The record does contain, however, an “Administrative Segregation
Status Placement” dated August 31, 2011.14 According to that
document, Mr. Goguen was placed in segregation by
Sergeant Plourd for “continually arguing with Staff in the
performance of their duties” and “threatening Staff with
lawsuits.”15 The following day, however, Lieutenant Bugbee
reviewed the placement and removed Mr. Goguen from A-pod because
Major Allen had “advise[d]” that Mr. Goguen did “not pose [a]
threat to security.”16
13 See id. at 16–17.
14 R.56-3 at 17.
15 Id.
16 Id.
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Mr. Goguen remained in E-pod for a little over three
and one-half hours. At that time, officers were conducting a
count of the inmates. When officers reached Mr. Goguen’s cell,
his back was facing the officers, and he appeared to be
urinating. Mr. Goguen later testified that he in fact was
urinating during the count. Officer Rizzo wrote a disciplinary
report and a notice of infraction for a violation of A–05,
“Count.”17 Officer Rizzo also wrote up Mr. Goguen for violations
of B–19, “Threatening,” and B–13, “Provocation,” for swearing
and calling Officer Rizzo names. Mr. Goguen again was placed in
A-pod.
On September 1, 2011, Officer Gilblair notified
Mr. Goguen of this infraction and asked for Mr. Goguen’s version
of the events. On September 8, 2011, Mr. Goguen received notice
that a disciplinary hearing for the incident was scheduled for
September 13, 2011. Officer Crafts presided at the hearing, at
which Mr. Goguen testified. As part of this hearing,
Officer Crafts reviewed answers to written questions posed by
Mr. Goguen to his cell mate. Following the hearing,
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 acted as committee members. The parties
dispute the testimony that was given. According to the
defendants, Mr. Goguen testified that there was an 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. The
committee determined that Mr. Goguen should be removed from
administrative segregation, but placed on disciplinary
segregation for an old write-up. On September 21, 2011,
Mr. Goguen was transferred back to E-pod, where he 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. Mr. Goguen claims that the
liquid was water and that it was the cup that was black.
Officer Rizzo wrote a disciplinary report and a notice of
infraction for a violation of C–04, “Giving, Receiving, or
Swapping.” 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 a notice of the
September 29 infraction that same day. 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. Non-defendant Officer Baldinelli wrote a disciplinary
report and 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.
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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 3. Officer Jeffrey Jacques served as the
hearing officer. 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 one-day cell restriction. An inmate on cell
restriction is allowed to come out of the cell to 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. Non-defendant Officer Michael Johnson was
the hearing officer. Mr. Goguen pleaded guilty, and Officer
Johnson imposed a four-hour cell restriction.
5. October 13, 2011 Cell Search
On October 13, 2011, Sergeant Plourd ordered
Officer Rizzo to perform a search of Mr. Goguen’s cell.
21 R.45-9 (Munn Aff.) at 1.
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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. Some documents landed in the toilet and sink; all
were out 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 sealed and was marked as legal paperwork.
Officer Rizzo opened the envelope and saw a memo from
Major Allen, at which point he stopped and took the paperwork to
Sergeant Plourd to review. Sergeant Plourd looked at the
paperwork and instructed Officer Rizzo to return it to
Mr. Goguen, which Officer Rizzo did.
‐21‐
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 The following day, Officer Rizzo wrote a disciplinary
report and a notice of infraction for a violation of B–13,
“Provocation,” in connection with the shower incident. 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 version of the events, and gave
Mr. Goguen a copy of the notice. On October 20, 2011,
Mr. Goguen received notice that a disciplinary hearing was
scheduled for October 25, 2011. 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 September and October 2011, Mr. Goguen
filed a number of grievances concerning the actions of SCJ
officers. One grievance concerned a book entitled, “The
Prisoner’s Self Help Litigation Manual.” 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 removed from his cell, allegedly by Officer
Shawn Maguire. Mr. Goguen filed a grievance concerning the
missing book. On September 21, Officer Maguire wrote 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 at SCJ opening his legal mail.25 One of these
subsequent grievances, filed on September 29, concerned the
actions of Officer Rizzo. 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. October 21, 2011 Placement in A-pod
On 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 Segregation Status Placement dated
10/21/11) at 23.
27 Id.
‐25‐
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, and he
appealed the reclassification decision. The appeal hearing was
held on November 1, 2011. At the appeal hearing, the
classification committee consisted of Officer Theresa Brown,
Lieutenant Bugbee and two non-defendant officers, Stephen Giggey
and Chris Murray. Mr. Goguen was present and testified at the
hearing. 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. Color
drawings are considered contraband at the SCJ because 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 In his
second amended complaint, Mr. Goguen detailed 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 his right to due process under the Fourteenth
Amendment, his right to petition the Government 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) 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;
(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 had confined him to an
unsanitary cell and had provided him
unsanitary food service, in violation
‐30‐
Following discovery, the defendants filed a
comprehensive dispositive motion. The defendants maintained
that many of Mr. Goguen’s allegations -- that 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. The defendants moved for
summary judgment on the merits with respect to Mr. Goguen’s
claim that he had suffered retaliation. 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 between his grievances and the alleged
retaliation.34 The defendants also argued that they were
entitled to summary judgment with respect to Mr. 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 However, they continued, “not all restrictions placed
upon 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 They submitted that, because Mr. Goguen’s
placements in administrative segregation were justified
initially by his violations of jail rules, and then were
reviewed within seventy-two hours, the requirements of due
process were met.
The defendants also maintained that they were entitled
to summary judgment on Mr. Goguen’s constitutional claims
related to being strip searched. They noted 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 body-
cavity 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 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.”38
2.
After briefing was completed, the magistrate judge
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‐
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 that it was not necessary “to decide whether
these conditions, in combination, cross the ‘punitive’
threshold for a pretrial detainee,” because Mr. Goguen’s
placement in administrative segregation also involved
“multiple daily strip searches and visual body cavity
searches.”41 “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 County calls it ‘administrative’
confinement.”42 Critical to the 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 judge therefore concluded that “[t]hese
conditions . . . raise a genuine issue of 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, and Jeffrey Jacques, Mr. Goguen had not
sufficiently developed his claims. As for the due 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
particular context. [49]
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 filed objections to the magistrate
judge’s recommendations. 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) 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
(2) 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 omitted). In their briefing before this
court, the defendants primarily focused on the use of strip
searches for detainees in administrative segregation. We cannot
conclude that this sufficed to raise the issue of the
‐40‐
II.
Our first task is to determine whether we may
entertain the defendants’ appeal. 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 a fact-related dispute about the pretrial
record.” Id. at 307. 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 that “a defendant, entitled to invoke a qualified
immunity defense, may not appeal a district 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. Vázquez moved for summary judgment on
qualified immunity grounds, the district court denied the
motion, and Vázquez appealed. 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). In that case, Cady brought an action on behalf of her
son, 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 maintained that they were protected by qualified
immunity. The district court, however, disagreed and denied the
motion, 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 pre-
trial 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 from those facts), and we had
exercised jurisdiction. Id. at 360 (citing Mlodzinski, 648 F.3d
at 28). 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 any developed argument that the defendants are
entitled to summary judgment even if the district court’s
conclusions about the record were correct.” 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) (footnote omitted)
(citations omitted).
‐49‐
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 of example only, the defendants fail to
acknowledge the direct evidence that Officer Rizzo and
Major Allen both were using administrative segregation as a
means of retaliating against Mr. Goguen for his filing of
grievances and use of the courts.54 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 the same day that Mr. Goguen testified against
Officer Gilblair with respect to the complaint of a fellow
inmate. The defendants also ignore evidence pointing to a
retaliatory placement in administrative segregation following
the dispute over the July 15 bunk assignments. The defendants
repeat throughout their brief that Mr. Goguen refused
Officer Rizzo’s order to take the top bunk. Mr. Goguen,
however, explicitly refuted this in his deposition. 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.” 753 F.3d at 360. They
make no “‘purely legal’ contentions” that we are able to
separate from these factual assertions. Id.
After Mr. Goguen raised the issue of our jurisdiction
in his responsive brief, the defendants did acknowledge the rule
that they could seek immediate review only if the district
court’s judgment “‘turn[ed] on an issue of law.’”56 They
maintained, however, that, “[i]f the denial of 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 The district court, however, did not rest its
findings on Mr. Goguen’s unsworn allegations, but, instead,
“looked to Goguen’s deposition to determine whether he ha[d]
offered any sworn testimony to support his unsworn factual
assertions.”59 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 [is] not immediately appealable under the
collateral order doctrine.” Cady, 753 F.3d at 358–59.
Similarly, on an interlocutory appeal, we are not at liberty to
reexamine a district court’s determination that there is a
genuine issue of material fact as to a government actor’s
motivation in taking specific actions. See Valdizán v. Rivera-
Hernandez, 445 F.3d 63, 65 (1st Cir. 2006). As our discussion
here demonstrates, “overlook[ing] this 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 for summary judgment on qualified immunity
grounds. Consequently, we do not have jurisdiction over the
defendants’ appeal. The appeal is dismissed for want of
jurisdiction.
APPEAL DISMISSED
‐57‐