USCA1 Opinion
September 27, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1102
WESTON J. STOW,
Plaintiff, Appellant,
v.
DAVID HORAN, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Weston J. Stow on brief pro se.
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Jeffrey R. Howard, Attorney General, and William C. McCallum,
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Assistant Attorney General, on brief for Michael Cunningham appellee.
David Horan, Assistant County Attorney, and Peter McDonough,
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Assistant County Attorney, on brief for David Horan and James O'Mara
and Hillsborough County.
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Per Curiam. Appellant Weston Stow appeals the
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district court's grant of summary judgment in appellees'
favor. We affirm in part and remand for further proceedings.
I. Background
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We describe the facts in the light most
advantageous to Stow. See Nereida-Gonzalez v. Tirado-
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Delgado, 990 F.2d 701, 702 (1st Cir. 1993). In September
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1990, Stow, who was serving a prison term in Massachusetts,
was transported to a county jail in New Hampshire under the
Interstate Agreement on Detainers (IAD) to stand trial on
charges pending against him in that state.1 He was tried
and convicted on those charges in December 1990, and was
returned to county jail pending sentencing. On April 1,
1991, James O'Mara, who was superintendent of the county
jail, obtained Stow's transfer to the New Hampshire State
Prison (NHSP). In a letter to an NHSP official, O'Mara
explained that Stow was "facing the longest sentence handed
[down] in the history of the Hillsborough County Superior
Court for a non-murder case. In addition, inmate Stow is
involved in civil litigation with the former Superintendent
[, which] presents a minor problem. If inmate Stow were to
be injured during a forced move, he could allege that the
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1. The IAD is codified at N.H. Rev. Stat. Ann. 606-A:1.
State prisoners may file section 1983 suits based on alleged
violations of the IAD, as codified in state law. See Cuyler
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v. Adams, 449 U.S. 433, 442, 450 (1981).
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treatment was a result of this suit. It would be most
helpful if this situation could be avoided." Stow was then
transferred to NHSP without being given prior notice or a
statement of reasons for his transfer.
On May 3, 1991, a New Hampshire court sentenced
Stow to 40-80 years in prison, to be served consecutive to
his Massachusetts sentence. He then appealed his conviction.
On June 14, 1991, state prison officials told him to prepare
for his return to Massachusetts, but later that day he was
told that he would not be returned to Massachusetts. He
discovered subsequently that county prosecutor David Horan
had instructed prison officials to keep him in New Hampshire.
The asserted ground for doing so was apparently the state's
concern that, if Stow's appeal were successful, Stow would
contest future attempts to return him to New Hampshire for
retrial and seek dismissal of the indictment against him
under the IAD.2
In July and August, Stow wrote to O'Mara, advising
him that he was being illegally detained in New Hampshire and
that it was O'Mara's responsibility to have him transported
back to Massachusetts after his sentencing. In August and
September, Stow submitted several inmate request slips to
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2. Under what is known as an "anti-shuffling" provision, a
prisoner may obtain dismissal of the indictment against him
in a receiving state if the state has not tried him on the
charges against him before returning him to the sending
state. See N.H. Rev. Stat. Ann. 606-A:1, Art. IV(e).
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NHSP Warden Michael Cunningham, requesting clarification of
his situation, and stating that the county attorney had said
that Cunningham was responsible for preventing his return to
Massachusetts.
While these events were unfolding, Stow filed the
present actions against O'Mara and Horan, seeking declaratory
relief and compensatory and punitive damages under 42 U.S.C.
1983.3 His claims were two-fold, relating first to the
state's failure to return him to Massachusetts, and second to
his transfer to NHSP from the county jail. Stow alleged that
Horan had prevented Stow's return to Massachusetts in June
1991, thereby violating Stow's rights under the IAD and
various provisions of the Federal Constitution; that he
should have been returned to Massachusetts after he was
sentenced on May 3, 1991;4 and that O'Mara had not returned
him to Massachusetts despite Stow's requests that he do so.
With respect to his second claim, Stow asserted that
transferring him to NHSP "without notice, without official
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3. In his original complaint against Horan, Stow sought
injunctive relief as well, but a consolidated complaint
omitted that claim. Later, the court denied Stow's
separately filed motions for a temporary restraining order
and a preliminary and permanent injunction.
4. In his submissions below, Stow argues that he should have
been returned either after his conviction in December 1990 or
at the latest after he was sentenced. We confine our
description of the facts and our analysis to the allegations
in Stow's complaint.
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reason" in itself violated his rights and, moreover, occurred
in retaliation for his filing of a civil complaint against
county jail administrators and for suggesting that he would
file additional complaints if certain alleged constitutional
violations continued. In an amended complaint, Stow claimed
that a county employee had told him that he had been
transferred because he had filed the lawsuit. What is more,
Stow averred that he had consistently queried county jail
authorities about alleged civil rights violations at the
jail, and that he had done so most intensely in the time
period immediately preceding his transfer. Later, Stow added
Cunningham as a defendant, seeking declaratory relief and
damages. Stow alleged that he had informed Cunningham that
he was being held at NHSP in violation of the IAD and that he
wanted to be returned to Massachusetts, but that Cunningham
had refused to act.
Subsequently, the parties filed motions for summary
judgment.5 The court granted Cunningham's motion. It found
that Cunningham had absolute immunity deriving from the
common law immunity accorded wardens and others who carry out
judicial orders, pointing to a state decision denying Stow
habeas relief on the basis of the alleged IAD violation. See
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Stow v. Horan, 829 F. Supp. 504, 507 (D.N.H. 1993). The
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5. Cunningham filed a motion to dismiss, which he
supplemented by affidavit after the district court directed
the parties to submit summary judgment materials.
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court also granted summary judgment for Horan and O'Mara,
determining that Horan had qualified immunity6 and that
O'Mara was protected by qualified immunity for the period
preceding the state habeas decision and by absolute immunity
for the subsequent period. Concluding that New Hampshire law
conferred no pre-transfer procedural rights on Stow, the
court dismissed Stow's claims relating to his transfer to
NHSP.
II. Discussion
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A. Alleged IAD Violations
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Stow claims first that the court erred in finding
the defendants to be immune from suit. Since we conclude
that all defendants were protected by qualified immunity, we
need not address the district court's conclusions, or the
parties' arguments, anent absolute immunity.
None of the cases cited by Stow held that a
receiving state may not keep an IAD prisoner in the state
pending resolution of an appeal where the state is concerned
that if it returns the prisoner to the sending state and the
appeal is successful the prisoner could obtain dismissal of
the indictment against him under the IAD. To be sure, some
of the case law supports the proposition that Stow could not
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6. Because it found that Horan had qualified immunity, the
court declined to consider Horan's claim of absolute
prosecutorial immunity. On appeal, Stow seems mistakenly to
believe that the court found that Horan had absolute
immunity, and much of his argument addresses that question.
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have obtained dismissal of the indictment against him if the
state had returned him to Massachusetts pending appeal. See,
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e.g., Joubert v. McKernan, 588 A.2d 748, 751 (Me. 1991)
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(denying a prisoner's claim that a receiving state was
required to retain custody over him pending resolution of his
appeal); State v. Jefferson, 574 A.2d 918, 921-22 (Md. 1990)
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(denying a prisoner's claim that the receiving state had
violated the anti-shuffling provision of the IAD by returning
him to the sending state pending his "de novo" appeal of his
conviction under state statute); Shanks v. Commonwealth, 574
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S.W.2d 688 (Ky. Ct. App. 1978) (denying a prisoner's claim
that the receiving state had violated the anti-shuffling
provision of the IAD by returning him to the sending state
pending his retrial after a mistrial and analogizing that
situation to returning a prisoner to the sending state
pending appeal of a conviction) (dictum). Nonetheless, those
cases do not proscribe what the state did here, or actually
hold that an IAD prisoner has the unequivocal right to be
returned to the sending state pending appeal. Given the
potentially serious consequences of prematurely returning
Stow to Massachusetts and the dearth of precedent, we think
it is clear that a reasonable state official could decline to
rely on those cases -- all of which are from other
jurisdictions -- in determining when to return Stow to
Massachusetts.
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Moreover, the IAD itself does not require Stow's
return to Massachusetts after his sentencing. Instead, it
requires only that a prisoner be returned "[a]t the earliest
practicable time consonant with the purposes of this
agreement." See N.H. Rev. Stat. Ann. 606-A:1, Art. V(e). On
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its face, therefore, the IAD establishes no bright-line
rules, but anticipates case-by-case evaluations about when it
is possible to return an inmate to his sending state.
Finally, we note that the New Hampshire Supreme
Court has recently held that the state may keep an IAD
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prisoner in the state pending resolution of his appeal where
the state had legitimate concerns that it might not be able
to retry him if his appeal were successful. See Cross v.
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Warden, 644 A.2d 542 (N.H. 1994).
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Because appellees violated none of Stow's clearly
established rights by keeping him in the state pending
resolution of his appeal, they are protected from a suit for
damages by qualified immunity. See Nereida-Gonzalez, 990
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F.2d at 704.
B. Stow's Transfer to NHSP
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Stow accepts the district court's determination
that New Hampshire law gave him no right to notice, a
statement of reasons for his transfer, or a hearing before
being transferred from the county jail to the NHSP.
Nevertheless, he asseverates that a Massachusetts prison
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classification regulation, 103 Code Mass. Regs. 420.04
(1992) (stating that the regulation applies to "all inmates
at state, county and federal correctional institutions who
are serving a sentence imposed by Massachusetts"), applied to
him while he was in New Hampshire because he was serving his
Massachusetts sentence while in that state. He claims that
that regulation grants him certain pre-transfer procedural
rights. Even if Stow's argument that the classification
regulation applied to him is correct,7 it avails him naught:
the regulation conferred no pre-transfer procedural rights on
Stow. Rather, it provides that a classification hearing
"shall normally occur before an inmate's transfer." See id.
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420.09(2)(a). But "transfer" is defined to be either
"[t]he act of moving an inmate from one correctional facility
to another correctional facility within Massachusetts upon
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approval by the Commissioner or his designee," or an
"inmate's movement to an out of state or federal facility."
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Id. 420.06 (emphasis supplied). Furthermore, the term
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"correctional facility" is defined to mean a "state, county
or contract correctional institution located within
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Massachusetts." Id. (emphasis supplied). Nowhere does the
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regulation confer procedural rights on inmates who are
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7. We do not decide this point, but we note that Stow's
argument appears to find support in Good v. Commissioner of
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Correction, 629 N.E.2d 1321, 1323-24 (Mass. 1994).
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transferred intrastate from one correctional facility to
another, neither of which is located in Massachusetts.
Stow also argues that the district court failed to
consider his retaliatory transfer claim. We agree.
Accordingly, we remand to the district court to consider that
claim under the relevant case law. See, e.g., Ferranti v.
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Moran, 618 F.2d 888, 891 (1st Cir. 1980); McDonald v. Hall,
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610 F.2d 16, 18 (1st Cir. 1979).
C. Discovery-Related Issues
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Stow also claims that the district court erred in
ruling on certain discovery-related matters. First, he says
that the court erred in granting summary judgment since
discovery had not been completed. But he did not present
this argument to the district court -- indeed, he, himself,
moved for brevis disposition -- and the argument is,
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therefore, waived. See e.g., Ouimette v. Moran, 942 F.2d 1,
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12 (1st Cir. 1991).
Second, Stow says that the court erred in
sustaining O'Mara's objection to a request for the production
of documents, thereby depriving Stow of evidence necessary to
support his retaliatory transfer claim. Stow asked O'Mara to
provide copies of the following:
-- any and/or all relevant data, such as other
inmates/pre-trial detainees charged with class A
Felonies, admittance sheets, records, etc. which would
show their name, type of charge and how many
dis[c]iplinary reports, or 24 hr lock-ups they
rec[ei]ved from the periods of Sept. 07, 1990 and April
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01-1991 while being housed at the Hillsborough County
jail. [And]
-- any and/or all relevant data, such as would be
necessary to show which pre-trial detainees/inmates
housed at the Hillsborough county jail from the [same
periods] were charged with class A Felonies and did not
rec[ei]ve any d-reports and/or 24 hr lock-ups and were
transferred to the N.H.S.P. Additionally, copies of any
transfer papers and that part of their inmate records
which apply.
O'Mara objected on the ground of burdensomeness, stating that
the requests would require him to review and classify
approximately 2,200 files and copy each file in its entirety.
He pointed out, correctly, that Stow had not offered to pay
for the copying. He also said that he would be reluctant to
allow Stow to review the files of other prisoners since they
were confidential. We find that the lower court did not
abuse its discretion in sustaining O'Mara's objections,
especially since Stow's requests were overbroad and sought
information irrelevant to his claim.
Third, Stow claims that the court erred in denying
his request to take into account a set of admissions under
Fed. R. Civ. P. 36, to which O'Mara did not respond. While
such admissions are appropriately considered on summary
judgment, see generally United States v. Kasuboski, 834 F.2d
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1345, 1350 (7th Cir. 1987); see also Talley v. United States,
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990 F.2d 695, 697 (1st Cir.) ("Under [Rule] 36(a), the
failure to respond to such a request is deemed a binding
admission, unless the court later grants leave under [Rule]
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36(b) to withdraw the admission."), cert. denied, 114 S. Ct.
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190 (1993), we have already remanded Stow's retaliatory
transfer claim, see supra, and we assume that the district
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court will consider O'Mara's default admissions on remand.8
We note, however, that O'Mara may yet move to permit
withdrawal of the admissions. See Fed. R. Civ. P. 36(b). We
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intimate no opinion on how the district court should treat
such a motion if one is forthcoming.
III. Conclusion
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We need go no further. To the extent that Stow
advances other claims, none require comment. It suffices to
say that we have considered them all, and summarily reject
them. We add only that his request for declaratory judgment
is moot because he has been returned to Massachusetts, see
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Preiser v. Newkirk, 422 U.S. 395 (1975), and that the denial
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of his motion to file a further amended complaint was within
the court's discretion, see Foman v. Davis, 371 U.S. 178, 182
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(1962) (holding that leave to amend may be denied if the
amendment would be futile). Finally, the court did not err
in declining to appoint counsel. See Cookish v. Cunningham,
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787 F.2d 1, 2 (1st Cir. 1986) (explaining that an indigent
litigant has no constitutional right to counsel in a civil
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8. For clarity's sake, we note that the court need not
consider the default admissions relating to O'Mara's alleged
duty to return Stow to Massachusetts. Given their ambiguity,
the admissions do not alter our conclusion that O'Mara has
qualified immunity. See Talley, 990 F.2d at 686.
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case, but must demonstrate exceptional circumstances to
justify the appointment of counsel).
Affirmed in part and remanded for further
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proceedings.
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