Thomas v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Oliver Thomas
v. Civil No. 16-cv-12-SM
Joey Paul and M. Vigneault
REPORT AND RECOMMENDATION
Plaintiff Oliver Thomas, in this Bivens action,1 is suing
two Federal Correctional Institution (“FCI Berlin”) correctional
officers for violating his Fifth Amendment right to equal
protection (Count I) and his First Amendment rights to petition
the government (Count II) and to free speech (Count III).
Before the court is defendants’ motion to dismiss (Doc. No. 45).
Plaintiff objects.
Background
At all times relevant to this matter, Thomas was an inmate
at FCI Berlin. In Count I, Thomas asserts that defendants
violated his Fifth Amendment right to equal protection by
discriminating against him on the basis of his race in three
1See Bivens v. Six Unknown Named Agents of the Fed. Bureau
of Narcotics, 403 U.S. 388 (1971).
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different ways.2 In Count II, he asserts that defendants
violated his First Amendment right to petition the government
for a redress of grievances by firing him from his job in the
FCI Berlin laundry in retaliation for his stated intention to
report them to prison officials for allegedly subjecting him to
sexually-charged and racially-discriminatory behavior. In Count
III, he asserts that defendants: (1) twice directed him to lie
to prison officials and outside auditors during inspections, to
hide improper practices taking place under their supervision;
and (2) threatened to fire him from his prison job if he did not
lie as instructed. As for the content of the speech at issue,
Thomas alleges that he was directed to tell inspectors and FCI
Berlin officials that he cleaned out dryer vents more often than
he actually did, and that the laundry no longer used an
unauthorized, unlabeled chemical when, in fact, the chemical was
still in use. See Compl. (Doc. No. 1) ¶¶ 16-17.
2Thomas claims that defendants: (1) fired him from his job
in the prison laundry because of his race; (2) paid him less
than they paid white inmates and/or denied him bonuses that were
afforded to white inmates with a lower pay grade than his; and
(3) demoted him so that his work assignment could be given to a
white inmate.
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Discussion
Defendants move to dismiss Counts I and II on grounds that
plaintiff has failed to exhaust administrative remedies
available to him to resolve the issues on which those claims are
based. They move to dismiss Count III, contending that it fails
to state a claim upon which relief can be granted, pursuant to
Fed. R. Civ. P. 12(b)(6).
I. Standard
In ruling on a motion to dismiss under Rule 12(b)(6), the
court must consider whether the factual content in the
complaint, and inferences reasonably drawn therefrom, taken as
true, state a claim to relief. Hernandez-Cuevas v. Taylor, 723
F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). In doing so, the court disregards any
legal conclusions. Hernandez-Cuevas, 723 F.3d at 102-03. The
court is generally limited to considering “‘facts and documents
that are part of or incorporated into the complaint,'” as well
as “‘documents incorporated by reference . . . , matters of
public record, and other matters susceptible to judicial
notice.'” Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008)
(citations omitted). As petitioner is proceeding pro se in this
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action, the court must construe the pleadings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
II. Counts I and II
Defendants move to dismiss Counts I and II because they
argue Thomas has not satisfied the exhaustion requirement
imposed by the Prison Litigation Reform Act of 1995. See 42
U.S.C. § 1997e(a). The failure to exhaust is an affirmative
defense. See Ramos v. Patenaude, 640 F.3d 485, 488 (1st Cir.
2011). An affirmative defenses may properly be the subject of a
motion to dismiss if the facts alleged in the complaint, or
matters susceptible of judicial notice, conclusively establish
the elements of the affirmative defense. See Gray v. Evercore
Restructuring LLC, 544 F.3d 320, 324 (1st Cir. 2008).
Here, defendants support their motion to dismiss with an
affidavit that is, in turn, supported by six separate
attachments. Defendants have not shown that PLRA exhaustion is
an issue properly decided on a motion to dismiss. Accordingly,
the district judge should deny the motion to dismiss (Doc. No.
45) as to Counts I and II, without prejudice to defendants’
ability to file a motion for summary judgment based on
exhaustion.
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III. Count III
Count III is Thomas’s claim that defendants violated his
First Amendment rights by threatening to fire him from his
prison job if he did not lie to prison officials and outside
auditors about improper practices at FCI Berlin. To state a
claim of retaliation for the exercise of free speech, an inmate
must allege: “‘(1) that the speech or conduct at issue was
protected, (2) that the defendant took adverse action against
the plaintiff, and (3) that there was a causal connection
between the protected speech and the adverse action.'” Cossette
v. Poulin, 573 F. Supp. 2d 456, 459 (D.N.H. 2008) (footnote and
citations omitted).
Defendants’ motion to dismiss focuses on the first element,
whether the speech at issue was protected.3 Analogizing
plaintiff’s prison laundry job with that of a public employee,
defendants argue that the speech at issue concerned only a
matter of personal interest and did not pass the public concern
3Defendants do not argue that the threatened firing of
plaintiff was not an adverse act. Cf. Schleig v. Borough of
Nazareth, No. 16-3499, 2017 WL 2591408, at *4, 2017 U.S. App.
LEXIS 10637, at *8 (3d Cir. June 15, 2017) (“the threat of
dismissal, depending on its clarity and credibility, can form
the basis for a claim of retaliation in violation of the First
Amendment” (citing Pickering v. Bd. of Educ., 391 U.S. 563, 574
(1968)).
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test: “A public employee . . . ‘has no First Amendment cause of
action based on his or her employer’s reaction to the speech’
unless ‘the employee spoke as a citizen on a matter of public
concern.’” Id. at 460 (footnote omitted) (quoting Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006)). Whether “speech addresses
a matter of public concern” is a question of law that “must be
determined by the content, form, and context of a given
statement, as revealed by the whole record.” Connick v. Myers,
461 U.S. 138, 147–48 (1983) (footnote omitted).
Defendants are mistaken in contending that plaintiff’s
speech was not protected. In the first place, it is not clear
that the “public concern” test limits the type of inmate speech
that is protected under the First Amendment. Cf. Bridges v.
Gilbert, 557 F.3d 541, 551 (7th Cir. 2009) (“a prisoner's speech
can be protected even when it does not involve a matter of
public concern” (footnote omitted)). Moreover, even if the
court were to assume that the public concern applies, Thomas
alleges that his inhibited speech concerned two threats to
safety in the prison laundry, which are matters of public
concern, i.e., infrequent cleaning of dryer vents and the use of
an unauthorized chemical. The context manifests that the speech
addressed a matter of public concern. Thomas alleges that some
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of the people he was told to mislead were inspectors from
outside the prison. In short, the speech at issue was protected
by the First Amendment. Consequently, as to Count III,
defendants’ motion to dismiss (Doc. No. 45) should be denied.
Conclusion
For the foregoing reasons, defendants’ motion to dismiss
(Doc. No. 45) should be denied. As to Counts I and II, the
district judge should deny that motion (Doc. No. 45) without
prejudice to defendants’ ability to move for summary judgment on
PLRA exhaustion.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen day period may be extended
upon motion. Failure to file specific written objections within
the specified time waives the right to appeal the district
court’s order. See Santos-Santos v. Torres-Centeno, 842 F.3d
163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
June 21, 2017
cc: Oliver Thomas, pro se
Terry L. Ollila, Esq.
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