JOSEPH N. LAPLANTE, District Judge.
Before the Court is Defendant's Motion (doc. no. 11) to rescind this Court's May 7, 2014 Order (doc. no. 4). The Order directed Defendants not to place the Plaintiff, Jose Miguel Hilario, into "general population" at the Federal Correctional Institute, Berlin, New Hampshire ("FCI Berlin"), where Hilario is presently incarcerated, and to house Hilario, to the extent practicable, in a manner that will keep him safe from harm. The Court held an evidentiary hearing on August 11, 2014, on the Motion to rescind and on Hilario's request that the Court maintain the May 7 Order. Also before the Court are a number of motions filed by Hilario (doc. nos. 22, 24, 32, and 41) and Defendants' Motion to Dismiss (doc. no. 37).
At the August 11 hearing, Hilario testified that he arrived at the FCI Berlin on April 3, 2014. Hilario testified that, at the time of his arrival, he believed that the inmates with whom he had been transported to FCI Berlin, and who were subsequently housed with Hilario at the FCI Berlin, were circulating rumors about Hilario being a sex offender.
Hilario's cellmate on C-1 Unit on April 3, 2014 ("Cellmate 1"), immediately asked Hilario about his incarcerating offense. Hilario eventually told Cellmate 1 that he was a sex offender. Cellmate 1 told Hilario that he could not stay on the unit unless he could produce court papers to demonstrate that he was not a sex offender within a month. The following morning, Hilario reported Cellmate 1's statement, which Hilario understood to be a threat, to the C-1 Unit officer. Hilario was immediately transferred to the Special Housing Unit ("SHU") while the threat was investigated.
On April 9, 2014, FCI Berlin authorities met with Hilario and informed him that they could not verify a threat to Hilario on C-1 Unit. Warden Esker Tatum directed that Hilario be returned to C-1 Unit. On April 13, 2014, the eve of Hilario's return to C-1 Unit, Hilario filed an "Inmate Request to Staff" form, directed to Tatum, stating that he had actually been assaulted by Cellmate 1 on April 3, 2014, but had not previously reported the assault because he was afraid for his safety in the institution if he was identified as a "snitch."
Hilario was returned to C-1 Unit on April 14, 2014. Hilario states that in his C-1 Unit cell, his cellmate, a different individual than his cellmate on April 3, 2014 ("Cellmate 2"), stated that Hilario could not stay in that cell, and punched Hilario on the left side of his face. Hilario said that he was in his cell for a short time, approximately three to five minutes.
When Hilario left his cell, he went to the C-1 Unit office and told the corrections officer there that he wanted to see a lieutenant. Hilario was sent to Lt. Jeremy Hess's office. Hilario told Lt. Hess that he needed protective custody, and began to explain what had just occurred in his cell, but Lt. Hess told Hilario instead to fill out a "Protective Custody" form. Lt. Hess placed Hilario in the "tank" to fill out the form, but two to three minutes later, before Hilario had a chance to complete the form, and before he had written down that he was assaulted, Lt. Hess snatched the form out of Hilario's hands and told Hilario that he was not going to send him to protective custody.
A corrections officer then directed Hilario to return to his cell on C-1 Unit. Hilario refused, stating that he feared his life was in jeopardy on that unit. Accordingly, Hilario was transferred to SHU and issued a disciplinary incident report for the refusal. Hilario testified that later, upon Hilario's report that he had been assaulted by Cellmate 2, he was seen and medically assessed by FCI Berlin Nurse Christine Larin, who determined that Hilario had an injury on the left side of his face.
FCI Berlin officials determined again that the alleged April 14, 2014, threat and assault were not verified, and that Hilario should be returned to a general population unit. Hilario has remained at SHU, however, since April 14, 2014, during the investigation of the asserted threat, and, since May 7, 2014, pursuant to the May 7 Order.
On April 3, 2014, Hilario arrived at the FCI Berlin.
During an intake interview with Special Investigative Services ("SIS") Technician Glen Brown, Hilario stated that he did not have any known enemies or threats to him at the FCI Berlin. Hilario was then placed on C-1 Unit in general population. On April 4, 2013, Hilario saw Lt. Hess and requested protective custody status on the basis that, as a sex offender, he was not safe in general population, and that inmates had been requesting to see his court papers to determine whether he was a sex offender and therefore should get himself removed from C-1 Unit.
Hilario was immediately removed to SHU during an investigation of the threat alleged. Brown interviewed Hilario at SHU. Hilario reported to Brown that, because he was incarcerated on a sex offense, he had been asked to produce his court papers and harassed, both by Cellmate 1 and by Hilario's fellow Dominican inmates on C-1 Unit.
On April 6, 2014, Brown interviewed both Cellmate 1 and a Dominican inmate in connection with Hilario's allegations. Both inmates told Brown that they were not involved with checking court papers, that they had no issues with Hilario, and that Hilario could return to C-1 Unit. Unable to confirm that there was any threat to Hilario's safety, Brown recommended that the alleged threat be deemed unverified, and that Hilario be returned to general population. After a meeting on April 9, 2014, attended by Hilario, Brown, Warden Tatum, and other FCI Berlin officials, Esker told Hilario that he would be returned to general population. Hilario was released to C-1 Unit on
Hilario arrived on the C-1 Unit at 1:35 p.m. on April 14, 2014. At approximately 2:45 p.m., Hilario went to the C-1 Unit lieutenant's office and reported to Lt. Hess that he had been threatened and that his life was in danger in general population, and requested protective custody status. Lt. Hess testifed that he spoke with Hilario for 15-30 minutes, during which time Hilario gave at least three different accounts of who had threatened him, first stating it was someone on his unit, then that it was Cellmate 2, who Hilario described as Hispanic, and then that it was four to seven of Cellmate 2's friends on the unit. When Lt. Hess said that he could watch the video feed on the unit to help determine who had made the reported threat, Hilario stated that it was the same person who had assaulted him on April 3. Lt. Hess testified that he asked Hilario a number of times if he had been assaulted on April 14, 2014, and Hilario never said that he was hit.
Lt. Hess then gave Hilario a form on which to request protective custody status, placed Hilario in the holding cell in his office, and told him to fill out the form. At that time, among other inconsistencies in Hilario's statements, Lt. Hess determined that Cellmate 2 was African-American, not Hispanic. Hess also spoke with the C-1 Unit officer, who had not noticed anything unusual on the unit.
Lt. Hess testified that because there was "not a whole lot" of credible information provided by Hilario, he chose not to pursue Hilario's request for protective custody. Lt. Hess testified that he then snatched the Protective Custody form out of Hilario's hands.
At 3:30 p.m., while Hilario was still in the lieutenant's office on C-1 Unit awaiting transport to SHU, Lt. Derek Myers came on duty and relieved Lt. Hess at the end of his shift. Lt. Hess told Lt. Myers that Hilario had requested protective custody status, alleging that he had been threatened, and that Hilario was scared to stay in general population. Lt. Hess also told Lt. Myers that Hilario had refused to return to C-1 Unit and was thus going to be placed at SHU. Lt. Myers decided to conduct his own investigation of the threat incident, and questioned Hilario briefly before having Hilario escorted to SHU at approximately 3:50 p.m. Hilario told Lt. Myers that he had been threatened, but did not report being assaulted. Once Hilario was in SHU, another officer advised Lt. Myers that Hilario had reported being assaulted on C-1 Unit that day. Lt. Myers then directed that Hilario be medically assessed. An SIS investigation was initiated. Lt. Myers reviewed the C-1 Unit video feed from 1:30 p.m. to 2:45 p.m. on April 14, 2014, and saw no evidence of an assault on Hilario. Lt. Myers stated that the video did not reach into Hilario's cell, but did show Hilario going into his cell twice, for no more than six seconds each time. Further, Lt. Myers testified that Hilario's demeanor on the unit was calm, and that Hilario had a conversation with Cellmate 2 outside of his cell after leaving his cell for the second time, and then lingered in the common area for approximately twenty minutes before going to the unit office to request protective custody status.
Lt. Myers and Lt. Hess both testified that in their dealings with Hilario between 1:35 p.m. and approximately 7:00 p.m., they saw nothing in Hilario's appearance to suggest that he had been assaulted. A medical assessment was conducted by FCI Berlin Nurse Christine Larin during the evening of April 14, 2014. Nurse Larin's report indicates that Hilario reported being punched in the left cheek, that Hilario had "slight redness to [his] left upper cheek" and "some tenderness on palpation," but no "raccoon eyes, laceration(s), abrasion(s), [or] swelling."
On April 24, 2014, Brown interviewed Hilario concerning his second protective custody request. Brown also interviewed other inmates, including Cellmate 2, who stated that they had not assaulted or threatened Hilario, and had no issue with him. Brown also viewed the C-1 Unit video feed from approximately 1:50 to 3:50 p.m., and did not see any evidence of an assault on the tape. Brown conceded that he did not view the video for the first fifteen minutes Hilario spent in C-1 Unit on April 14, 2014, and that the video feed did not provide a view inside Hilario's cell. Based on his investigation, and the fact that Hilario had stated he would be willing to be housed in a general population unit if no one there presented any threat to him, Brown recommended that Hilario be released from SHU and returned to general population.
Brown testified that, as of the date of the August 11 hearing, there were 86 sex offenders at FCI Berlin. In addition to Hilario, five other sex offenders were in SHU based on allegations that they had been pressured while in general population to produce their court paperwork. Eighty sex offenders were living safely in general population units. Defendants represented at the hearing that no sex offender presently at FCI Berlin, other than Hilario, has reported being assaulted there. At the hearing, evidence was also presented that there are 12 general population units at FCI Berlin, and that if returned to general population, Hilario would not necessarily be returned to C-1 Unit.
"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."
Demonstrating a likelihood of success on the merits of the underlying claims in the lawsuit is a prerequisite to obtaining preliminary injunctive relief.
In this instance, the testimony from both parties demonstrated that both times Hilario was placed in general population and reported a threat to his safety, he was placed in SHU pending investigation of his allegations. Although the testimony at the hearing suggested that the investigations were not as thorough, objective, or effective as they could have been, the investigations were sufficient to allow the Court to find that the Defendants responded reasonably to Hilario's allegations under the circumstances presented to them. Even if the findings of the investigations were incorrect, or the investigations were conducted in a negligent fashion, the evidence at the hearing showed that neither Hilario's allegations of threats, nor the potential risk of harm to Hilario in general population, were disregarded by the Defendants. Hilario thus failed to meet his burden to demonstrate that Defendants acted with deliberate indifference. Accordingly, Hilario did not demonstrate that he is likely to succeed on the merits of the underlying claims in this action.
Even if Hilario were able to demonstrate that he was likely to succeed on the merits of his underlying claims, he has failed to demonstrate that he will be subject to irreparable harm absent an injunction. Demonstration of irreparable harm in the absence of an injunction is required to obtain preliminary injunctive relief.
Hilario contends that, as a sex offender, and as someone who, since reporting the threats that form the basis of this action, is likely to be labelled a "snitch," his life will be in danger if he is returned to general population. In support of this assertion, Hilario claims that during each of his two brief stays in C-1 Unit in April 2014, he was threatened and assaulted by other inmates because he is a sex offender. The Defendants counter that the investigations found no verifiable threat to Hilario's safety.
The burden to demonstrate that irreparable harm does exist, however, is Hilario's, and he failed to meet it. As the Court stated on the record at the August 11 hearing, Hilario has convinced the Court that he is sincerely afraid for his safety in a prison setting if he is not placed into protective custody. However, Hilario failed to present credible evidence at the hearing that he would, in fact, be in imminent danger of irreparable harm if the May 7 Order were rescinded. Hilario's accounts of threats and assaults, both at the hearing and at FCI Berlin, have been inconsistent, at best. The only other evidence of assault was a red mark on Hilario's face, without swelling, that a nurse saw on the evening of April 14, 2014, but that neither Lt. Myers nor Lt. Hess, who each spoke at some length with Hilario that afternoon, received a report of an assault, or saw any mark on Hilario's face, at that time. Without more, the evidence of redness on Hilario's face is insufficient to lend sufficient credence to Hilario's account of events to allow the Court to find that irreparable harm to Hilario will result if the Court rescinds the May 7 Order.
Even if the Court were to accept, for the sake of argument, that Hilario was threatened and assaulted on April 3 and April 14, 2014, however, Hilario cannot demonstrate that, absent the Court's maintaining the May 7 Order, he would be subject to irreparable harm. The evidence at the hearing showed, and Hilario did not deny, that Hilario need never return to general population at FCI Berlin if he does not feel safe there, regardless of the findings of any threat investigation. Hilario has the right to refuse to be housed in general population, and to stay in SHU. Although refusing general population placement would result in disciplinary action and sanctions against Hilario, no nonspeculative evidence was presented at the hearing indicating that those sanctions would be so severe as to constitute irreparable harm.
Although Hilario testified that while housed at SHU he was threatened and assaulted by his cellmate there, he also testified that FCI Berlin officials, upon Hilario's report of that incident, immediately conducted a medical assessment, and protected his safety by moving him to another cell. Further, the evidence at the hearing demonstrated, first, that of the 86 sex offenders housed at FCI Berlin as of the date of the hearing, 80 were being housed safely in general population. Accordingly, Hilario has failed to meet his burden to demonstrate that he will suffer irreparable harm if the Court rescinds the May 7 Order.
The Court need not make any finding concerning the balance of hardships or whether an injunction here would further public interest, as Hilario has demonstrated neither likelihood of success on the merits of his complaint nor irreparable harm.
At the August 11, 2014, hearing, the Court announced, on the record, how it was inclined to rule on a number of motions pending in this case, including Plaintiff's: "Motion to Order the Defendants to Stop Giving Code Violations" (doc. no. 22); "Motion to Request Summary Judgment at the Conclusion of this Bivens Claim" (doc. no. 24); "Motion to Request that the Court Order AUSA to Give Answers to Plaintiff's Constitutional Questions" (doc. no. 32); "Motion for Protective Custody Status" (doc. no. 41); and Defendants' "Motion to Dismiss" (doc. no. 37). The Court's statements concerning these motions were docketed as oral orders. The Court's intention was not to issue final orders on those matters but, as the Court stated specifically with regard to the Motion to Rescind (doc. no. 11), the Court intended to take those matters under advisement, and to review the evidence prior to issuing its Order. Accordingly, the Court now directs that the "Oral Orders" docketed on August 11, 2014, denying the motions docketed at numbers 22, 24, 32, 37, 41, and 42, be vacated. The Court's rulings on those motions are contained in this Order.
Hilario has asserted that on two occasions in June 2014, FCI Berlin officials who had not been made aware of the Court's May 7 Order, directed Hilario to return to general population, and then initiated disciplinary action against Hilario when he refused to do so. At the August 11 hearing, Defendants admitted that the May 7 Order had not been effectively communicated to all relevant FCI Berlin officials. However, the evidence at the hearing demonstrated that once approproate officials were made aware of the May 7 Order, the disciplinary actions and sanctions imposed thereon were rescinded and/or expunged, and thus did not impact Hilario. Further, the Court finds that the failure to communicate its Order, while less than commendable, did not constitute willful disregard of a Court order sufficient to warrant a contempt finding, as requested in Plaintiff's motion.
In his Motion, Hilario also requested an order directing that he be transferred to a different facility that is safer for sex offenders. For the reasons explained above, the Court finds that no such Order is warranted. Accordingly, Hilario's motion (doc. no. 22) is denied.
While titled as a motion for summary judgment, Hilario's Motion (doc. no. 24) largely reiterates Hilario's request for injunctive relief, and also adds a request for compensatory and punitive damages. To the extent the Motion reiterates Hilario's claim for injunctive relief, it is denied for the reasons stated in this Order. If Hilario seeks to add claims for damages to this action, he must do so by properly filing a motion to amend his complaint seeking such relief against appropriate defendants. Accordingly, the Motion (doc. no. 24) is denied without prejudice to Hilario filing a motion for summary judgment or a motion to amend his complaint.
The Court cannot find any cognizable request for relief in Hilario's Motion. Further, nothing in the Motion appears relevant to any issue in this case. Accordingly, the Motion (doc. no. 32) is denied.
Hilario asserts that when he submitted an administrative grievance requesting protective custody status, FCI Berlin officials informally resolved the grievance. Hilario believed the informal resolution included Defendants' promise to give Plaintiff protective custody status. Hilario seeks an Order directing that the promise be enforced. The Court finds that no such promise existed, and thus there is nothing to enforce. Further, for the reasons explained in this Order and during the August 11 hearing, the Court finds that directing the Defendants to place Hilario in protective custody is inappropriate. Accordingly, the Motion (doc. no. 41) is denied.
Defendants have filed a motion to dismiss asserting that Hilario has failed to exhaust his administrative remedies in this matter. Because the motion requires consideration of evidence outside of the pleadings, it is not properly considered as a motion to dismiss, but instead, as a motion for summary judgment. Accordingly, the Motion (doc. no. 37) is denied without prejudice to Defendants' refiling the motion as one for summary judgment.
On August 15, 2014, Hilario filed a document in this matter entitled "Notice of Appeal" (Docket No. 45-1). In general, the District Court loses jurisdiction in a case once a party files a notice of appeal, as such a filing ordinarily transfers jurisdiction over the case, or at least of matters in the case related to the appeal, to the appellate court. However, certain exceptions to that rule exist.
Here, it appears that Hilario seeks to appeal the "Oral Orders" which, as the Court now clarifies, this Court did not intend to issue as final Orders. Because the Court has vacated the "Oral Orders" as clerical docketing errors, Hilario's "Notice of Appeal" does not pertain to an appealable Order in this matter. Accordingly, this Court finds that it maintains jurisdiction over the issues before the Court related to Hilario's custody, security status, and housing placement.
For the foregoing reasons, and for the reasons stated on the record at the August 11, 2014, hearing in this matter:
SO ORDERED.
