Starr v. Moore

849 F.Supp.2d 205

2012 DNH 064

Darren STARR

v.Greg MOORE.

Civil No. 09–cv–440–JL.

United States District Court, D. New Hampshire.

March 28, 2012.

Michael J. Sheehan, Sheehan Law Office, Concord, NH, for Darren Starr.

Laura E.B. Lombardi, Attorney General's Office, Concord, NH, for Greg Moore.

MEMORANDUM ORDER

JOSEPH N. LaPLANTE, District Judge.

The parties to this case, arising out of a prison employee's claimed retaliation against an inmate for seeking relief from this court in another matter, disagree over the admissibility, at the upcoming jury trial, of two types of “other acts” evidence: (a) other litigation by the inmate and (b) other alleged acts of retaliation by the employee. The inmate, plaintiff Darren Starr, has moved in limine seeking to exclude evidence of lawsuits, as well as internal grievances, that he filed against the prison or its employees after the alleged retaliation at issue. The prison employee named as a defendant in this action, Greg Moore, has moved in limine seeking to exclude evidence of other acts of alleged retaliation against Starr.

Starr claims that, by telling other inmates that their special holiday meals had been discontinued because of Starr's complaint to this court in another matter, Moore not only retaliated against Starr for exercising his First Amendment rights, but also endangered his well-being in violation of his Eighth Amendment rights. This court therefore has subject-matter jurisdiction under 28 U.S.C. § 1331 (federal question). For the reasons fully explained below, both motions in limine are denied without prejudice to the potential exclusion of particular lawsuits or grievances, or particular acts of alleged retaliation, at trial.

I. Background

Starr, the plaintiff, is now an inmate at the New Hampshire State Prison. At the time of the events underlying this lawsuit, he was incarcerated at the Northern New Hampshire Correctional Facility. Moore, the defendant, worked as a cook in the kitchen of that facility. Proceeding pro se and seeking leave to proceed in forma pauperis, Starr commenced this action against Moore, and a number of other facility employees, on December 16, 2009. Following her preliminary review, see L.R. 4.3(d)(2), Magistrate Judge McCafferty construed the complaint to state plausible claims against Moore for (1) retaliation against Starr for exercising his First Amendment right to petition for redress of grievances, (2) endangering Starr's well-being in violation of his Eighth Amendment rights, and (3) intentionally inflicting emotional distress on Starr at common law.¹ But she recommended dismissal of another First Amendment claim that Starr had asserted, as well as all of his claims against all of the other employees he had named. This court later adopted Judge McCafferty's report and recommendation in full, over Starr's objection. Order of Aug. 18, 2010, 2010 WL 3282573.

Starr alleges that Moore told other inmates that they were no longer receiving special meals on holidays as a result of a complaint that Starr had made to this court. Specifically, in early 2005, Starr had filed internal prison grievances over a proposed change to the prison's meal policy so that inmates would receive just two meals, rather than the customary three, on Saturdays and Sundays. Starr then mentioned this change to Magistrate Judge Muirhead during an evidentiary hearing in a seemingly unrelated case that Starr had filed against the warden and a number of other employees at the facility.² At the hearing, in March 2005, Judge Muirhead expressed the view that this change would be “totally contrary to the prison's own regulations” and urged the attorney for the defendants there that it “be stopped beginning immediately.”

The facility indeed stopped serving only two meals on Saturdays and Sundays, but also stopped serving special holiday meals. These had consisted of brunch and a holiday-themed supper, both containing more food than the non-holiday meals. On July 4, 2005, a number of inmates complained about their non-special holiday meals to employees working in the facility's kitchen, who explained that this change came about because Starr had sued the prison, so that, in essence, “if they had any problem with not having a holiday meal, they should take it up with Starr.” Some of them did just that, resulting in physical confrontations between Starr and the inmates. Starr alleges that essentially the same sequence of events played out on or around several subsequent holidays, including July 4, 2005, Thanksgiving 2005, Christmas 2005, Super Bowl Sunday 2006, Thanksgiving 2006, Christmas 2006, and, finally, July 4, 2007.

Starr learned that it was Moore who had blamed him for the inferior holiday meals on the last of these days, July 4, 2007. Indeed, Starr alleges that Moore admitted as much to him. As provided by the prison's internal rules for prisoner complaints, Moore timely filed an inmate request slip, a second level grievance, and a third level grievance complaining about Moore's actions. In response, prison officials told Starr, in substance, that Moore would be reprimanded in some fashion but not fired, and that nothing else would be done. Aside from an inmate request slip that he had filed after the Super Bowl Sunday incident, Starr had not filed timely grievances about any of the other times he had been blamed for the substandard holiday fare.

Since learning of Moore's conduct, Starr has filed at least two other actions in this court against employees of the state prison, complaining about unrelated matters. See Starr v. Knierman, No. 10–437 (Sept. 28, 2010) (challenging aspects of the prison mail policy); Starr v. Blaisdell, No. 07–311 (Sept. 28, 2007) (seeking habeas relief from New Hampshire's “truth in sentencing” law, N.H.Rev.Stat. Ann. § 651:2, II-e). Starr acknowledges that he has also filed grievances on unrelated matters, though he does not identify those matters specifically.

II. Analysis

As noted at the outset, Starr seeks to exclude evidence that he filed grievances and lawsuits over unrelated matters subsequent to the claimed acts of retaliation at issue here, while Moore seeks to exclude evidence of that retaliation except as it relates to the final incident, on July 4, 2007. Both motions are denied.³

First, the fact that Starr made formal complaints against prison employees after Moore had allegedly retaliated against him for formally complaining about the meal policy has at least some probative value as to whether Moore's conduct would have deterred a similarly situated person of ordinary firmness from exercising his First Amendment petition right—which is an essential element of Starr's retaliation claim. Second, evidence of the incidents of alleged retaliation prior to July 4, 2007, tends to show, if nothing else, that Moore was acting with an intent to retaliate against Starr in blaming him for the lack of holiday meals on that day. This theory of relevance is unaffected by Moore's arguments that Starr cannot recover for some or all of those other incidents because he failed to grieve them according to the facility's internal procedures or they occurred outside of the limitations period (issues which this court does not decide at the moment), or for any other reason.

A. Starr's subsequent grievances and lawsuits

As Starr acknowledges, to prevail on his retaliation claim, he must show, among other things, that Moore's complained-of conduct would have “deter[red] a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Dawes v. Walker, 239 F.3d 489, 493 (2d Cir.2001); accord Starr v. Dube, 334 Fed.Appx. 341, 342–43 (1st Cir.2009) (unpublished disposition); Horstkotte v. N.H. Dep't of Corrs., 2010 DNH 058, 8, 2010 WL 1416790. He argues, though, that because this is an “objective inquiry,” Dawes, 239 F.3d at 489;see also, e.g., Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir.2009), whether he was deterred from future petitioning activity is irrelevant, so evidence of his subsequent grievances and lawsuits is inadmissible, seeFed.R.Evid. 401, 402.

Starr is correct that, in evaluating a retaliation claim, “the issue is whether a person of ordinary firmness would be deterred, not whether [the plaintiff] himself actually was deterred.” Thomas v. Eby, 481 F.3d 434, 441 (6th Cir.2007). Otherwise, “no case alleging retaliation for exercising First Amendment rights could ever be brought,” because the very bringing of the case would show that the complained-of retaliation had not deterred the plaintiff. Id.; see also, e.g., Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir.2005) (rejecting such a rule as placing plaintiffs claiming retaliation in a “vicious Catch–22”).

Yet it does not follow that evidence of how the plaintiff himself acted in the face of the alleged retaliation is irrelevant to how a person of ordinary firmness would have acted in a similar situation. To the contrary, a number of courts have recognized that, in assessing retaliation claims, “how a plaintiff acted might be evidence of what a reasonable person would have done.” Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir.2003); see also, e.g., Bennett v. Hendrix, 423 F.3d 1247, 1255 (11th Cir.2005); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir.2005); Hofelich v. Ercole, No. 06–13697, 2010 WL 1459740, at *3 (S.D.N.Y. Apr. 8, 2010); Houseknecht v. Doe, 653 F.Supp.2d 547, 561 (E.D.Pa.2009) (citing additional cases). So it is potentially relevant that, after experiencing the alleged retaliation for complaining to this court about the meal policy, Starr persisted in filing grievances and lawsuits against prison employees. SeeFed.R.Evid. 401, 402. Because relevance is the only basis that Starr urges for excluding that evidence at this point, his motion in limine is denied. This ruling is without prejudice, however, to Starr's seeking to exclude evidence of particular grievances or...