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. Escorsio, 764 F.3d 102 (1st Cir.2014), we cannot entertain the defendants' appeal.
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 their cells to shower three times per week; each inmate generally is allowed ten to fifteen minutes to shower. Once a week, inmates
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.
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.
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 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."
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."
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.
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 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
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.
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.
After Mr. Goguen returned to SCJ, Mr. Goguen again was placed in A-pod on July 15, 2011, as a result of a dispute 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,
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
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.'"
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."
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.
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, 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.
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.
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.
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,"
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. Nondefendant Officer Michael Johnson was the hearing officer. Mr. Goguen pleaded guilty, and Officer Johnson imposed a four-hour cell restriction.
On October 13, 2011, Sergeant Plourd ordered Officer Rizzo to perform a search of Mr. Goguen's cell. Mr. Goguen asserts that, during the search, Officers Rizzo and Eddie Jacques took thousands of pages of discovery related to one of Mr. Goguen's then-pending civil cases (against correctional officers at another county jail) and threw them on the floor. 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
Officer Rizzo wrote a disciplinary report and a notice of infraction for a violation of C-09, "Possession,"
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.
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 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.
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.
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."
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.
Mr. Goguen was told that he could appeal his classification decision to Major Allen, but he did not do so.
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.
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.
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.
Mr. Goguen filed this action under 42 U.S.C. § 1983, naming numerous officers and administrators at SCJ.
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 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
After briefing was completed, the magistrate judge issued an exhaustive report and recommendation. In it, the magistrate judge summarized Mr. Goguen's claims accordingly:
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
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."
The magistrate judge therefore concluded that "[t]hese conditions ... raise a genuine issue of material fact concerning the denial of due process."
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
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
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
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.
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."
In Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), the Supreme Court considered whether an appellate court could entertain "an 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, 115 S.Ct. 2151. 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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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, 115 S.Ct. 2151.
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,
Id. at 74 (emphasis added) (citations omitted).
We had an opportunity to apply Johnson again in Diaz v. Martinez, 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 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:
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.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.
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:
Id. at 358-59 (citations omitted) (quoting Johnson, 515 U.S. at 314, 316-17, 115 S.Ct. 2151; 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 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:
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 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,
Id. at 111 (alterations in original) (footnote omitted) (citations omitted).
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
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.
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.'"
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 circumstances, the collateral order doctrine does not allow, and concern for the wise use of judicial resources warns against, the exercise of appellate jurisdiction.
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.
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.
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.
R.24 at 51-54.
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:
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:
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 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.
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 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:
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.
