Case: 1:09-cv-169 As of: 01/30/2019 10:26 PM EST 1 of 19
U.S. District Court District of Rhode Island (Providence) CIVIL DOCKET FOR CASE #: 1:09−cv−00169−WES−LDA

CLOSED

Cook v. Wall et al Assigned to: Chief Judge William E. Smith Referred to: Magistrate Judge Lincoln D. Almond Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 04/09/2009 Date Terminated: 11/03/2015 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Jason Cook

represented by Amato A. DeLuca DeLuca & Weizenbaum, Ltd 199 North Main Street Providence, RI 02903 453−1500 Fax: 453−1501 Email: bud@delucaandweizenbaum.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian N. Goldberg Tang & Maravelis, P.C. 3970 Post Rd Warwick, RI 02886 401−398−8394 Email: bgoldberg@tangmaravelis.com TERMINATED: 04/10/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Azevedo NEARI Assistant Executive Director 99 Bald Hill Road Cranston, RI 02920 401−463−9630, Ext. 308 Email: jazevedo@neari.org TERMINATED: 04/10/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew T. Jerzyk The Law Offices of Matthew Jerzyk LLC 260 West Exchange St. Suite 102A Providence, RI 02903 (401) 757−0103 Email: mjerzyk@gmail.com TERMINATED: 12/28/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael T. Eskey Moses Afonso Ryan, Ltd. 160 Westminster Street Suite 400 Providence, RI 02903 401−453−3600 Fax: 401−453−3604 Email: teskey@marlawri.com TERMINATED: 04/10/2015 LEAD ATTORNEY

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ATTORNEY TO BE NOTICED
Miriam Weizenbaum DeLuca & Weizenbaum, Ltd 199 North Main Street Providence, RI 02903 453−1500 Fax: 453−1501 Email: miriam@dwlaw.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey A. Mega Decof, Decof & Barry, P.C. One Smith Hill Providence, RI 02903 401−272−1110 Fax: 401−351−6641 Email: jam@decof.com TERMINATED: 04/10/2015 ATTORNEY TO BE NOTICED
Shad M. Miller DeLuca & Weizenbaum, Ltd 199 North Main Street Providence, RI 02903 401−453−1500 Fax: 401−453−1501 Email: shad@dwlaw.us ATTORNEY TO BE NOTICED

V. Defendant Ashbel T. Wall individually and in his official capacity as director of the Rhode Island Department of Corrections TERMINATED: 11/02/2015
Defendant

represented by Rebecca Tedford Partington Attorney General's Office 150 South Main Street Providence, RI 02903 274−4400 x 2303 Fax: 222−2995 Email: rpartington@riag.ri.gov TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A. McElroy R.I. Department of Attorney General 150 South Main Street Providence, RI 02903 274−4400 x2345 Fax: 222−2996 Email: kmcelroy@riag.ri.gov ATTORNEY TO BE NOTICED
Matthew I. Shaw Rhode Island Department of Attorney General 150 South Main Street Providence, RI 02903 401−274−4400 Email: mshaw@riag.ri.gov ATTORNEY TO BE NOTICED

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Stephen Boyd individually and in his official capacity as a warden at the Rhode Island Department of Corrections TERMINATED: 11/02/2015

represented by Rebecca Tedford Partington (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly A. McElroy (See above for address) ATTORNEY TO BE NOTICED

Matthew I. Shaw (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michele Auger individually and in her official capacity as a deputy warden at the Rhode Island Department of Corrections TERMINATED: 02/12/2015

represented by Rebecca Tedford Partington (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly A. McElroy (See above for address) ATTORNEY TO BE NOTICED

Matthew I. Shaw (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kirk Kaszyk Individually and in his official capacity as a deputy warden at theRhode Island Department of Corrections TERMINATED: 02/12/2015

represented by Rebecca Tedford Partington (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly A. McElroy (See above for address) ATTORNEY TO BE NOTICED

Matthew I. Shaw (See above for address) ATTORNEY TO BE NOTICED

Defendant
Thomas Izzo individually and in official capacity as a correctional officer at the Rhode Island Department of Corrections TERMINATED: 11/02/2015

represented by Rebecca Tedford Partington (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly A. McElroy (See above for address) ATTORNEY TO BE NOTICED

Matthew I. Shaw (See above for address) ATTORNEY TO BE NOTICED

Defendant
Joseph Jankowski individually and in his official capacity as

represented by Rebecca Tedford Partington (See above for address)

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a correctional officer at the Rhode Island Department of Corrections TERMINATED: 11/02/2015

TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly A. McElroy (See above for address) ATTORNEY TO BE NOTICED

Matthew I. Shaw (See above for address) ATTORNEY TO BE NOTICED

Defendant
CO Nakhlis individually and in his official capacity as a correctional officer at the Rhode Island Department of Corrections TERMINATED: 11/02/2015

represented by Rebecca Tedford Partington (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly A. McElroy (See above for address) ATTORNEY TO BE NOTICED

Matthew I. Shaw (See above for address) ATTORNEY TO BE NOTICED

Defendant
CO Meunier individually and in his official capacity as a correctional officer at the Rhode Island Department of Corrections TERMINATED: 11/02/2015

represented by Rebecca Tedford Partington (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly A. McElroy (See above for address) ATTORNEY TO BE NOTICED

Matthew I. Shaw (See above for address) ATTORNEY TO BE NOTICED

Defendant
CO Freeman individually and in his official capacity as a correctional officer at the Rhode Island Department of Corrections TERMINATED: 11/02/2015

represented by Rebecca Tedford Partington (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly A. McElroy (See above for address) ATTORNEY TO BE NOTICED

Matthew I. Shaw (See above for address) ATTORNEY TO BE NOTICED

Defendant
CO Lawson individually and in his official capacity as a correctional officer at the Rhode Island Department of Corrections

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Defendant Rhode Island Department of Corrections TERMINATED: 11/02/2015
Defendant Corrections Officer Isom TERMINATED: 11/02/2015

represented by Michael B. Grant R.I. Department of Corrections 40 Howard Avenue Cranston, RI 02920 462−2910 Fax: 462−2583 Email: mike.grant@doc.ri.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Tedford Partington (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A. McElroy (See above for address) ATTORNEY TO BE NOTICED
Matthew I. Shaw (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Tedford Partington (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly A. McElroy (See above for address) ATTORNEY TO BE NOTICED
Matthew I. Shaw (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/09/2009
04/09/2009 04/14/2009 04/28/2009 04/28/2009

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $ 350 receipt number 14670000754.), filed by Jason Cook. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Geile, Wendy) (Entered: 04/09/2009)
Summons Issued as to Kirk Kaszyk, Thomas Izzo, Joseph Jankowski, CO Nakhlis, CO Meunier, CO Freeman, CO Lawson, Rhode Island Department of Corrections, Ashbel T. Wall, Stephen Boyd, Michele Auger. (Geile, Wendy) (Entered: 04/09/2009)
2 NOTICE of Appearance by Michael B. Grant on behalf of Rhode Island Department of Corrections (Grant, Michael) (Entered: 04/14/2009)
3 MOTION for Temporary Restraining Order WITH SUPPORTING MEMO by Jason Cook. (DeLuca, Amato) (Entered: 04/28/2009)
NOTICE of Hearing: In Chambers Conference re: Motion for Temporary Restraining Order set for 4/29/2009 at 10:00 AM in Judge Smith Chambers − before Judge William E Smith. (Geile, Wendy) (Entered: 04/28/2009)

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04/28/2009 04/28/2009 04/28/2009 04/28/2009 04/28/2009 04/28/2009 04/28/2009 04/28/2009 04/28/2009 04/28/2009 04/29/2009
04/29/2009 05/01/2009
05/01/2009 05/04/2009
05/04/2009 05/05/2009
05/20/2009

4 SUMMONS Returned Executed by Jason Cook. Ashbel T. Wall served on 4/13/2009, answer due 5/4/2009. (DeLuca, Amato) (Entered: 04/28/2009)
5 SUMMONS Returned Executed by Jason Cook. CO Freeman served on 4/16/2009, answer due 5/6/2009. (DeLuca, Amato) (Entered: 04/28/2009)
6 SUMMONS Returned Executed by Jason Cook. CO Meunier served on 4/13/2009, answer due 5/4/2009. (DeLuca, Amato) (Entered: 04/28/2009)
7 AFFIDAVIT of Service, filed by Jason Cook CO Nakhlis served on 4/13/2009, answer due 5/4/2009. (DeLuca, Amato) (Entered: 04/28/2009)
8 AFFIDAVIT of Service, filed by Jason Cook for Complaint Joseph Jankowski served on 4/13/2009, answer due 5/4/2009. (DeLuca, Amato) (Entered: 04/28/2009)
9 AFFIDAVIT of Service, filed by Jason Cook for Complaint Kirk Kaszyk served on 4/13/2009, answer due 5/4/2009. (DeLuca, Amato) (Entered: 04/28/2009)
10 AFFIDAVIT of Service, filed by Jason Cook Michele Auger served on 4/13/2009, answer due 5/4/2009. (DeLuca, Amato) (Entered: 04/28/2009)
11 AFFIDAVIT of Service, filed by Jason Cook for Complaint Rhode Island Department of Corrections served on 4/13/2009, answer due 5/4/2009. (DeLuca, Amato) (Entered: 04/28/2009)
12 AFFIDAVIT of Service, filed by Jason Cook for Complaint Stephen Boyd served on 4/13/2009, answer due 5/4/2009. (DeLuca, Amato) (Entered: 04/28/2009)
13 AFFIDAVIT of Service, filed by Jason Cook for Complaint Thomas Izzo served on 4/16/2009, answer due 5/6/2009. (DeLuca, Amato) (Entered: 04/28/2009)
Minute Entry for proceedings held before Judge William E Smith: In Chambers Conference re: Motion for TRO held on 4/29/2009. Amato DeLuca and Matthew Jerzyk for Plaintiff. Michael Grant and Rebecca Partington for Defendants. All counsel of record present. (Geile, Wendy) (Entered: 04/29/2009)
TEXT ORDER denying 3 Motion for TRO. So Ordered by Judge William E Smith on 4/29/2009. (Geile, Wendy) (Entered: 04/29/2009)
14 MOTION for an Extension of Time to File Answer re 1 Complaint, by Kirk Kaszyk, Thomas Izzo, Joseph Jankowski, CO Nakhlis, CO Freeman, Rhode Island Department of Corrections, Ashbel T. Wall, Stephen Boyd, Michele Auger. Responses due by 5/18/2009 (Partington, Rebecca) (Entered: 05/01/2009)
15 MOTION to Withdraw by Jason Cook. Responses due by 5/18/2009 (DeLuca, Amato) (Entered: 05/01/2009)
Motion Forwarded to Chambers 14 MOTION for an Extension of Time to File Answer re 1 Complaint, MOTION for an Extension of Time to File Answer re 1 Complaint, FORWARDED to Chambers of Judge William E. Smith. (Geile, Wendy) (Entered: 05/04/2009)
16 NOTICE of Appearance by Rebecca Tedford Partington on behalf of Kirk Kaszyk, Thomas Izzo, Joseph Jankowski, CO Nakhlis, CO Freeman, Ashbel T. Wall, Stephen Boyd, Michele Auger (Partington, Rebecca) (Entered: 05/04/2009)
TEXT ORDER granting 14 Motion for Extension of Time to Answer Kirk Kaszyk answer due 5/20/2009; Thomas Izzo answer due 5/20/2009; Joseph Jankowski answer due 5/20/2009; CO Nakhlis answer due 5/20/2009; CO Freeman answer due 5/20/2009; Rhode Island Department of Corrections answer due 5/20/2009; Ashbel T. Wall answer due 5/20/2009; Stephen Boyd answer due 5/20/2009; Michele Auger answer due 5/20/2009. So Ordered by Judge William E Smith on 5/5/2009. (Geile, Wendy) (Entered: 05/05/2009)
17 MOTION to Dismiss or in the alternative, Motion for Summary Judgment With Supporting Memo by Kirk Kaszyk, Thomas Izzo, Joseph Jankowski, CO Nakhlis, CO Meunier, CO Freeman, Rhode Island Department of Corrections, Ashbel T. Wall, Stephen Boyd, Michele Auger. Responses due by 6/8/2009 (Attachments: # 1 Affidavit)(Partington, Rebecca) (Entered: 05/20/2009)

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05/20/2009
05/21/2009 06/02/2009 06/04/2009 06/04/2009 06/29/2009 06/30/2009 07/02/2009 07/24/2009 07/29/2009 07/29/2009 12/28/2009 12/29/2009 12/29/2009 01/11/2010 01/19/2010

18 STATEMENT OF UNDISPUTED FACTS by Kirk Kaszyk, Thomas Izzo, Joseph Jankowski, CO Nakhlis, CO Meunier, CO Freeman, Rhode Island Department of Corrections, Ashbel T. Wall, Stephen Boyd, Michele Auger re 17 MOTION to Dismiss or in the alternative, Motion for Summary Judgment. (Partington, Rebecca) (Entered: 05/20/2009)
Motion Forwarded to Chambers 15 MOTION to Withdraw FORWARDED to Chambers of Judge William E. Smith. (Geile, Wendy) (Entered: 05/21/2009)
19 MOTION for an Extension of Time to Respond to Defendants' Motion to Dismiss by Jason Cook. Responses due by 6/19/2009 (DeLuca, Amato) (Entered: 06/02/2009)
Motion Forwarded to Chambers 19 MOTION for an Extension of Time to Respond to Defendants' Motion to Dismiss FORWARDED to Chambers of Judge William E. Smith. (Jackson, Ryan) (Entered: 06/04/2009)
TEXT ORDER granting 19 Motion for Extension of Time to respond to 17 MOTION to Dismiss or in the alternative, Motion for Summary Judgment ; Reset Deadlines: Responses due by 6/28/2009. So Ordered by Judge William E Smith on 6/4/09. (Jackson, Ryan) (Entered: 06/04/2009)
20 RESPONSE in Opposition re 17 MOTION to Dismiss or in the alternative, Motion for Summary Judgment WITH SUPPORTING MEMO filed by Jason Cook. (Attachments: # 1 Supplement Statement of Disputed Facts, # 2 Exhibit Plaintiff's Exhibit 16, # 3 Exhibit Plaintiff's Exhibit 17)(DeLuca, Amato) (Entered: 06/29/2009)
Motion Forwarded to Chambers 17 MOTION to Dismiss or in the alternative, Motion for Summary Judgment FORWARDED to Chambers of Judge William E. Smith. (Smith, Rana) (Entered: 06/30/2009)
MOTIONS REFERRED: 17 MOTION to Dismiss or in the alternative, Motion for Summary Judgment Motions referred to Senior Magistrate Judge Jacob Hagopian for Report and Recommendation. (Smith, Rana) (Entered: 07/02/2009)
21 MOTION for an Extension of Time time to complete discovery by Kirk Kaszyk, Thomas Izzo, Joseph Jankowski, CO Nakhlis, CO Freeman, Rhode Island Department of Corrections, Ashbel T. Wall, Stephen Boyd, Michele Auger. Responses due by 8/10/2009 (Partington, Rebecca) (Entered: 07/24/2009)
Motion Forwarded to Chambers 21 MOTION for an Extension of Time time to complete discovery FORWARDED to Chambers of Judge William E. Smith. (Jackson, Ryan) (Entered: 07/29/2009)
TEXT ORDER granting 21 Motion for Extension of Time. So Ordered by Judge William E. Smith on 7/29/09. (Jackson, Ryan) (Entered: 07/29/2009)
22 MOTION to Dismiss by Kirk Kaszyk, Thomas Izzo, Joseph Jankowski, CO Nakhlis, CO Freeman, Rhode Island Department of Corrections, Ashbel T. Wall, Stephen Boyd, Michele Auger. Responses due by 1/14/2010 (Partington, Rebecca) (Entered: 12/28/2009)
23 WITHDRAWAL of : 22 MOTION to Dismiss by Kirk Kaszyk, Thomas Izzo, Joseph Jankowski, CO Nakhlis, CO Freeman, Rhode Island Department of Corrections, Ashbel T. Wall, Stephen Boyd, Michele Auger. (Partington, Rebecca) (Entered: 12/29/2009)
24 MOTION for an Extension of Time by Kirk Kaszyk, Thomas Izzo, Joseph Jankowski, CO Nakhlis, CO Freeman, Rhode Island Department of Corrections, Ashbel T. Wall, Stephen Boyd, Michele Auger. Responses due by 1/15/2010 (Partington, Rebecca) (Entered: 12/29/2009)
MOTIONS REFERRED: 24 MOTION for an Extension of Time referred to Magistrate Judge Jacob Hagopian. (Jackson, Ryan) (Entered: 01/11/2010)
25 ORDER granting State of RI's 24 Motion for Extension of Time to respond to Petitioner's Second Request for Production of Documents. So Ordered by Magistrate Judge Jacob Hagopian on 1/19/10. (Jackson, Ryan) (Entered: 01/19/2010)

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01/25/2010 01/25/2010 02/03/2010 02/10/2010 02/18/2010 02/18/2010
03/15/2010
03/16/2010
03/16/2010 04/02/2010 04/05/2010 04/06/2010 04/07/2010 06/18/2010

26 AMENDED COMPLAINT against all defendants, filed by Jason Cook. (Attachments: # 1 Exhibit 1−8, # 2 Exhibits 9−12, # 3 Exhibit 13, # 4 Exhibits 14−16)(Jerzyk, Matthew) (Entered: 01/25/2010)
27 MEMORANDUM IN SUPPORT by Jason Cook in support of 26 Amended Complaint. (Jerzyk, Matthew) (Entered: 01/25/2010)
28 MOTION for an Extension of Time to File Answer re 26 Amended Complaint by Kirk Kaszyk, Thomas Izzo, Joseph Jankowski, CO Nakhlis, CO Meunier, CO Freeman, Rhode Island Department of Corrections, Ashbel T. Wall, Stephen Boyd, Michele Auger. Responses due by 2/22/2010 (Partington, Rebecca) (Entered: 02/03/2010)
MOTIONS REFERRED: 28 MOTION for an Extension of Time to File Answer re 26 Amended Complaint MOTION for an Extension of Time to File Answer re 26 Amended Complaint referred to Magistrate Judge Jacob Hagopian. (Jackson, Ryan) (Entered: 02/10/2010)
29 ORDER granting 28 Motion for Extension of Time to Answer Plaintiff's Amended Complaint. So Ordered by Magistrate Judge Jacob Hagopian on 2/18/10. (Jackson, Ryan) (Entered: 02/18/2010)
30 REPORT AND RECOMMENDATIONS re 17 MOTION to Dismiss or in the alternative, Motion for Summary Judgment filed by Rhode Island Department of Corrections, Kirk Kaszyk, CO Freeman, Ashbel T. Wall, Joseph Jankowski, Thomas Izzo, Stephen Boyd, Michele Auger, CO Nakhlis, CO Meunier ; Recommending the Motion to Dismiss be DENIED; Objections to R&R due by 3/8/2010. So Ordered by Magistrate Judge Jacob Hagopian on 2/18/10. (Jackson, Ryan) (Entered: 02/18/2010)
Motion Forwarded to Chambers 30 REPORT AND RECOMMENDATIONS re 17 MOTION to Dismiss or in the alternative, Motion for Summary Judgment filed by Rhode Island Department of Corrections, Kirk Kaszyk, CO Freeman, Ashbel T. Wall, Joseph Jankowski, Thomas Izzo, Stephen Boyd, MicheleREPORT AND RECOMMENDATIONS re 17 MOTION to Dismiss or in the alternative, Motion for Summary Judgment filed by Rhode Island Department of Corrections, Kirk Kaszyk, CO Freeman, Ashbel T. Wall, Joseph Jankowski, Thomas Izzo, Stephen Boyd, Michele FORWARDED to Chambers of Judge William E. Smith. (Jackson, Ryan) (Entered: 03/15/2010)
31 MOTION to Dismiss Amended Complaint With Supporting Memo by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall, Corrections Officer Isom. Responses due by 4/2/2010 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Affidavit of Robert McCutcheon, # 4 Exhibit 3)(Partington, Rebecca) Filers Modified on 4/6/2010 (Farrell Pletcher, Paula). (Entered: 03/16/2010)
32 ORDER adopting 30 Report and Recommendations; denying 17 Motion to Dismiss. So Ordered by Judge William E. Smith on 3/15/10. (Jackson, Ryan) (Entered: 03/16/2010)
33 RESPONSE in Opposition re 31 MOTION to Dismiss Amended Complaint WITH SUPPORTING MEMO filed by Jason Cook. (Attachments: # 1 Statement of Disputed Facts)(DeLuca, Amato) (Entered: 04/02/2010)
34 SUMMONS Returned Executed by Corrections Officer Isom. Corrections Officer Isom served on 3/2/2010, answer due 3/23/2010. (DeLuca, Amato) (Entered: 04/05/2010)
Motion Forwarded to Chambers 31 MOTION to Dismiss Amended Complaint FORWARDED to Chambers of Judge William E. Smith. (Jackson, Ryan) (Entered: 04/06/2010)
MOTIONS REFERRED: 31 MOTION to Dismiss Amended Complaint referred to Magistrate Judge Jacob Hagopian for Report & Recommendation. (Jackson, Ryan) (Entered: 04/07/2010)
35 STIPULATION by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. (Partington, Rebecca)

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06/23/2010 06/23/2010 06/24/2010 06/25/2010
12/23/2010 02/10/2011 09/26/2011 09/26/2011 03/14/2012 04/05/2012 04/05/2012
09/17/2012
10/01/2012

(Entered: 06/18/2010)
36 MOTION for Protective Order and Motion for Stay of Discovery with supporting memo by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 7/12/2010 (Attachments: # 1 Exhibit A)(Partington, Rebecca) (Entered: 06/23/2010)
37 MOTION to Expedite Hearing with supporting memo by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 7/12/2010 (Partington, Rebecca) (Entered: 06/23/2010)
Motion Forwarded to Chambers 36 MOTION for Protective Order and Motion for Stay of Discovery, 37 MOTION to Expedite Hearing FORWARDED to Chambers of Judge William E. Smith. (Jackson, Ryan) (Entered: 06/24/2010)
TEXT ORDER granting 36 Motion for Protective Order until such time as the Court either decides the Motion to Dismiss, or until the case is answered and a discovery schedule is set; if Plaintiff feels expedited discovery is called for, then he may file a motion to take depositions prior to the determination of the Motion to Dismiss; granting 37 Motion to Expedite. So Ordered by Judge William E. Smith on 6/25/10. (Jackson, Ryan) (Entered: 06/25/2010)
38 NOTICE by Jason Cook of Withdrawal of Appearance (Jerzyk, Matthew) (Entered: 12/23/2010)
Case Reassigned to Magistrate Judge Lincoln D. Almond. Magistrate Judge Jacob Hagopian no longer assigned to the case. (Farrell Pletcher, Paula) (Entered: 02/10/2011)
Motions No Longer Referred: 31 MOTION to Dismiss Amended Complaint no longer referred to Magistrate Judge Hagopian. Case referred back to Judge Smith. (Farrell Pletcher, Paula) (Entered: 09/26/2011)
MOTIONS REFERRED: 31 MOTION to Dismiss Amended Complaint referred to Magistrate Judge Lincoln D. Almond for report & recommendation. (Jackson, Ryan) (Entered: 09/26/2011)
NOTICE of Hearing on Motion 31 MOTION to Dismiss Amended Complaint : Motion Hearing set for 4/5/2012 10:00 AM in Courtroom A before Magistrate Judge Lincoln D. Almond. (Noel, Jeannine) (Entered: 03/14/2012)
39 NOTICE of Appearance by Brian N. Goldberg on behalf of Jason Cook (Noel, Jeannine) (Entered: 04/05/2012)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Motion Hearing held on 4/5/2012 re 31 MOTION to Dismiss Amended Complaint filed by Rhode Island Department of Corrections, Kirk Kaszyk, CO Freeman, Ashbel T. Wall, Corrections Officer Isom, Joseph Jankowski, Thomas Izzo, Stephen Boyd, Michele Auger, CO Nakhlis, CO Meunier. (Goldberg, Partington, Grant) Argument; Court takes matter under advisement; R&R to follow (Courtroom A at 10:05 am.) (Noel, Jeannine) (Entered: 04/05/2012)
40 REPORT AND RECOMMENDATIONS recommending that Defendants' Motion to Dismiss be GRANTED in part and DENIED in part as provided herein. In particular, recommending that Counts II, III, IV, V (as it relates to Article 1, § 2 of the R.I. Constitution) and VII of Plaintiff's Amended Complaint be DISMISSED. 31 MOTION to Dismiss Amended Complaint filed by Rhode Island Department of Corrections, Kirk Kaszyk, CO Freeman, Ashbel T. Wall, Corrections Officer Isom, Joseph Jankowski, Thomas Izzo, Stephen Boyd, Michele Auger, CO Nakhlis, CO Meunier Objections to R&R due by 10/4/2012. So Ordered by Magistrate Judge Lincoln D. Almond on 9/17/2012. (Noel, Jeannine) (Entered: 09/17/2012)
41 NOTICE of Appearance by Matthew I. Shaw on behalf of Michele Auger, Stephen Boyd, CO Freeman, CO Nakhlis, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Ashbel T. Wall (Shaw, Matthew) (Entered: 10/01/2012)

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10/01/2012 10/03/2012 10/05/2012 10/12/2012 11/05/2012 11/27/2012 01/28/2013
02/28/2013 03/08/2013 03/15/2013
03/26/2013 04/11/2013

42 OBJECTION to 40 Report and Recommendations with supporting Memo filed by Michele Auger, Stephen Boyd, CO Freeman, CO Lawson, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Ashbel T. Wall. (Shaw, Matthew) (Entered: 10/01/2012)
43 OBJECTION to 40 Report and Recommendations WITH SUPPORTING MEMO filed by Jason Cook. (Attachments: # 1 Supporting Memorandum, # 2 Exhibit Exhibit 1)(DeLuca, Amato) (Entered: 10/03/2012)
Motion Forwarded to Chambers 40 REPORT AND RECOMMENDATIONS re 31 MOTION to Dismiss Amended Complaint filed by Rhode Island Department of Corrections, Kirk Kaszyk, CO Freeman, Ashbel T. Wall, Corrections Officer Isom, Joseph Jankowski, Thomas Izzo, Stephen Boyd, M FORWARDED to Chambers of Judge William E. Smith. (Jackson, Ryan) (Entered: 10/05/2012)
44 REPLY MEMORANDUM re 42 Objection to Report and Recommendations, Plaintiff's Reply to Defendants' Objection, with Supporting Memorandum. (Attachments: # 1 Supporting Memorandum)(DeLuca, Amato) (Entered: 10/12/2012)
NOTICE of Hearing on Objections to 40 REPORT AND RECOMMENDATIONS re 31 MOTION to Dismiss Amended Complaint filed by Rhode Island Department of Corrections, Kirk Kaszyk, CO Freeman, Ashbel T. Wall, Corrections Officer Isom, Joseph Jankowski, Thomas Izzo, Stephen Boyd, M : Motion Hearing scheduled for 1/7/2013 at 3:30 PM in Courtroom 2 before Judge William E. Smith. (Jackson, Ryan) (Entered: 11/05/2012)
Reset Hearings re: Notice of Hearing on OBJECTIONS to 40 REPORT AND RECOMMENDATIONS re 31 MOTION to Dismiss Amended Complaint filed by Rhode Island Department of Corrections, Kirk Kaszyk, CO Freeman, Ashbel T. Wall, Corrections Officer Isom, Joseph Jankowski, Thomas Izzo, Stephen Boyd: Motion Hearing RE−SCHEDULED for 1/28/2013 at 2:00 PM in Courtroom 2 before Judge William E. Smith. (Jackson, Ryan) (Entered: 11/27/2012)
Minute Entry for proceedings held before Judge William E. Smith: Objection to Report & Recommendation Hearing held on 1/28/2013 re 40 . (DeLuca, Shaw, Pardington) Court addresses. Arguments heard on each parties objections to the Magistrate Judge's Report and Recommendation (R&R). Court questions. Each side responds. Court takes matter under advisement and will issue a ruling. Recess. (Court Reporter Anne Clayton in Courtroom 2 at 2:05 p.m.) (Urizandi, Nisshy) (Entered: 01/28/2013)
45 ORDER granting in part and denying in part 31 Motion to Dismiss; adopting in part 40 Report and Recommendations. So Ordered by Judge William E. Smith on 2/28/13. (Jackson, Ryan) (Entered: 02/28/2013)
46 Assented MOTION for an Extension of Time to File Answer re 26 Amended Complaint by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 3/25/2013 (Shaw, Matthew) (Entered: 03/08/2013)
TEXT ORDER granting 46 Motion for Extension of Time to Answer re 26 Amended Complaint: Michele Auger answer due 4/1/2013; Stephen Boyd answer due 4/1/2013; CO Freeman answer due 4/1/2013; CO Meunier answer due 4/1/2013; CO Nakhlis answer due 4/1/2013; Corrections Officer Isom answer due 4/1/2013; Thomas Izzo answer due 4/1/2013; Joseph Jankowski answer due 4/1/2013; Kirk Kaszyk answer due 4/1/2013; Rhode Island Department of Corrections answer due 4/1/2013; Ashbel T. Wall answer due 4/1/2013.. So Ordered by Judge William E. Smith on 3/15/13. (Jackson, Ryan) (Entered: 03/15/2013)
47 Defendants' ANSWER to 26 Amended Complaint by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall.(Shaw, Matthew) (Entered: 03/26/2013)
48 ERROR. PLEASE DISREGARD THIS NOTICE. NOTICE of Telephonic Hearing: Telephonic Rule 16 Conference set for 4/18/2013 02:00 PM before Magistrate Judge Lincoln D. Almond. Parties to participate via phone. The court will initiate the

Case: 1:09-cv-169 As of: 01/30/2019 10:26 PM EST 11 of 19

04/11/2013 04/11/2013 04/22/2013 04/30/2013 05/09/2013
06/27/2013 06/27/2013 06/28/2013
06/28/2013 07/02/2013
08/21/2013
08/21/2013
08/23/2013
08/23/2013

call.(Noel, Jeannine) Modified on 4/11/2013 (Noel, Jeannine). (Entered: 04/11/2013)
CORRECTIVE DOCKET ENTRY re: 48 Notice of Hearing. PLEASE DISREGARD THIS NOTICE. DOCKETED IN ERROR. (Noel, Jeannine) (Entered: 04/11/2013)
49 CORRECTED NOTICE of Hearing: Rule 16 Conference set for 4/30/2013 02:00 PM in Courtroom A before Magistrate Judge Lincoln D. Almond. (Noel, Jeannine) (Entered: 04/11/2013)
50 RULE 16 STATEMENT by Jason Cook. (DeLuca, Amato) (Entered: 04/22/2013)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Rule 16 Conference held on 4/30/2013. (Courtroom A at 2:07 pm.) (Noel, Jeannine) (Entered: 04/30/2013)
51 STANDARD PRETRIAL ORDER: Factual Discovery due by 10/31/2013. Dispositive Motions due by 11/15/2013. Counsel shall file electronically a pretrial memorandum, 30 days after a decision on any dispositive motion, or, if no dispositive motions are filed, by 11/30/2013. So Ordered by Magistrate Judge Lincoln D. Almond on 5/9/2013. (Noel, Jeannine) (Entered: 05/09/2013)
52 MOTION for an Extension of Time WITH SUPPORTING MEMO by Jason Cook. Responses due by 7/15/2013 (Mega, Jeffrey) (Entered: 06/27/2013)
53 MEMORANDUM IN SUPPORT by Jason Cook in support of 52 MOTION for an Extension of Time . (Mega, Jeffrey) (Entered: 06/27/2013)
54 RESPONSE to Motion re 52 MOTION for an Extension of Time filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. (Shaw, Matthew) Modified on 7/1/2013*Document incomplete refer to #55 (McGuire, Vickie). (Entered: 06/28/2013)
55 RESPONSE to Motion re 52 MOTION for an Extension of Time filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. (Shaw, Matthew) (Entered: 06/28/2013)
TEXT ORDER granting 52 Motion for Extension of Time to July 24, 2013 within which to answer and/or otherwise respond to Defendants' Interrogatories and Request for Production. Defendants' Cross−Request to extend the discovery deadline (Document No. 55) is DENIED as premature. So Ordered by Magistrate Judge Lincoln D. Almond on 7/2/2013. (Noel, Jeannine) (Entered: 07/02/2013)
56 Assented MOTION for an Extension of Time to Complete Discovery by December 20, 2013 filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 9/9/2013 (Shaw, Matthew) (Entered: 08/21/2013)
57 MOTION for Discovery To Take Deposition of Incarcerated Individuals filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 9/9/2013 (Shaw, Matthew) (Entered: 08/21/2013)
TEXT ORDER granting 57 MOTION for Discovery To Take Deposition of Incarcerated Individuals filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. So Ordered by Magistrate Judge Lincoln D. Almond on 8/23/2013. (Noel, Jeannine) (Entered: 08/23/2013)
TEXT ORDER granting for good cause shown 56 Defendants' Assented to Motion for Enlargement of Time up to and including December 20, 2013 to conduct factual discovery. So Ordered by Magistrate Judge Lincoln D. Almond on 8/23/2013. (Noel, Jeannine) (Entered: 08/23/2013)

Case: 1:09-cv-169 As of: 01/30/2019 10:26 PM EST 12 of 19

08/23/2013 08/29/2013 09/23/2013 10/31/2013 10/31/2013
11/14/2013 01/24/2014
02/18/2014
02/20/2014 03/03/2014 03/03/2014 03/18/2014 03/24/2014 03/25/2014 05/09/2014

Set/Reset Deadlines: Factual Discovery due by 12/20/2013. (Noel, Jeannine) (Entered: 08/23/2013)
58 MOTION to Take Deposition from Elliott Rivera filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 9/16/2013 (Shaw, Matthew) (Entered: 08/29/2013)
TEXT ORDER granting 58 MOTION to Take Deposition from Elliott Rivera. So Ordered by Magistrate Judge Lincoln D. Almond on 9/23/2013. (Noel, Jeannine) (Entered: 09/23/2013)
59 STIPULATION For Extension of Time by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. (Shaw, Matthew) (Entered: 10/31/2013)
60 Assented MOTION for an Extension of Time to Extend Discovery Deadline filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 11/18/2013 (Shaw, Matthew) (Entered: 10/31/2013)
TEXT ORDER granting 60 Defendants' Assented to Motion to Extend Discovery Deadline to February 20, 2014. Set/Reset Deadlines: ( Discovery due by 2/20/2014.) FINAL EXTENSION. So Ordered by Magistrate Judge Lincoln D. Almond on 11/14/2013. (Noel, Jeannine) (Entered: 11/14/2013)
61 MOTION to Take Deposition from Michael Connolly filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 2/10/2014 (Shaw, Matthew) (Entered: 01/24/2014)
TEXT ORDER granting absent opposition 61 MOTION to Take Deposition from Michael Connolly filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. So Ordered by Magistrate Judge Lincoln D. Almond on 2/18/2014. (Noel, Jeannine) (Entered: 02/18/2014)
62 MOTION to Compel Further Responses to Requests for Production of Documents filed by Jason Cook. Responses due by 3/10/2014 (Miller, Shad) (Entered: 02/20/2014)
63 RESPONSE in Opposition re 62 MOTION to Compel Further Responses to Requests for Production of Documents filed by Rhode Island Department of Corrections. (Shaw, Matthew) (Entered: 03/03/2014)
NOTICE of Hearing:Summary Judgment Conference scheduled for 3/18/2014 at 11:00 AM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 03/03/2014)
Minute Entry for proceedings held before Chief Judge William E. Smith: Summary Judgment Conference held on 3/18/2014; counsel present: A. DeLuca; R. Partington, M. Grant, M. Shaw. (Jackson, Ryan) (Entered: 03/18/2014)
64 STIPULATION re 62 MOTION to Compel Further Responses to Requests for Production of Documents by Jason Cook. (Miller, Shad) (Entered: 03/24/2014)
TEXT ORDER ENTERING re 64 STIPULATION re 62 MOTION to Compel Further Responses to Requests for Production of Documents by Jason Cook. So Ordered by Magistrate Judge Lincoln D. Almond on 3/25/2014. (Noel, Jeannine) (Entered: 03/25/2014)
65 MOTION to Quash and Objection to Subpoena and for Protective Order With Supporting Memo filed by Rhode Island Department of Corrections. Responses due by 5/27/2014 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Shaw, Matthew) Modified on 5/12/2014 CLERK&rsquo;S NOTE: Remote electronic access to the document has been restricted by the Clerk&rsquo;s Office as it contains one or more

Case: 1:09-cv-169 As of: 01/30/2019 10:26 PM EST 13 of 19

05/21/2014
05/23/2014
07/15/2014 08/06/2014 08/06/2014 08/13/2014 08/20/2014 08/21/2014 08/27/2014 08/27/2014 08/28/2014 09/02/2014 09/03/2014 09/03/2014 09/03/2014
09/04/2014

personal identifiers. (Urizandi, Nisshy). (Entered: 05/09/2014)
66 RESPONSE in Opposition re 65 MOTION to Quash and Objection to Subpoena and for Protective Order filed by Jason Cook. (Attachments: # 1 Exhibit, # 2 Exhibit)(Miller, Shad) CLERK&rsquo;S NOTE: Remote electronic access to the document has been restricted by the Clerk&rsquo;s Office as it contains one or more personal identifiers. Modified on 5/27/2014 (Urizandi, Nisshy). (Entered: 05/21/2014)
TEXT ORDER granting in part 65 MOTION to Quash and Objection to Subpoena and for Protective Order. The subpoena is not quashed; however, a protective order is issued limiting the examination of Mr. Springer to the claims and defenses asserted in the pleadings. Mr. Springer may not be examined on any new allegations of retaliation or regarding the pending investigation of Plaintiff's alleged violation of a no−contact order. So Ordered by Magistrate Judge Lincoln D. Almond on 5/23/2014. (Noel, Jeannine) (Entered: 05/23/2014)
NOTICE of Hearing: Status Conference/Summary Judgment Conference scheduled for 8/6/2014 at 2:00 PM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 07/15/2014)
Minute Entry for proceedings held before Chief Judge William E. Smith: Status/Summary Judgment Conference held on 8/6/2014; counsel present: A. DeLuca, S. Miller; M. Shaw. (Jackson, Ryan) (Entered: 08/06/2014)
Reset Deadline: All Discovery due by 9/26/2014; parties to submit letter(s) re: Summary Judgment on or before 9/30/14. (Jackson, Ryan) (Entered: 08/06/2014)
NOTICE of Hearing: Telephone Conference to discuss scheduling a settlement conference set for 8/20/2014 04:00 PM before Magistrate Judge Lincoln D. Almond. The court will initiate the call. (Noel, Jeannine) (Entered: 08/13/2014)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference held on 8/20/2014. (Noel, Jeannine) (Entered: 08/21/2014)
NOTICE of Hearing: Telephone Conference set for 9/12/2014 04:00 PM before Magistrate Judge Lincoln D. Almond. The court will initiate the call. (Noel, Jeannine) (Entered: 08/21/2014)
67 MOTION for Protective Order filed by Rhode Island Department of Corrections. Responses due by 9/15/2014 (Shaw, Matthew) (Entered: 08/27/2014)
68 MOTION to Expedite Consideration filed by Rhode Island Department of Corrections. Responses due by 9/15/2014 (Shaw, Matthew) (Entered: 08/27/2014)
69 RESPONSE in Opposition re 67 MOTION for Protective Order filed by Jason Cook. (Miller, Shad) (Entered: 08/28/2014)
70 MOTION to Strike , MOTION to Compel Deposition Testimony filed by Jason Cook. Responses due by 9/19/2014 (Attachments: # 1 Exhibit)(Miller, Shad) (Entered: 09/02/2014)
TEXT ORDER granting 68 Motion for Expedited Consideration. So Ordered by Magistrate Judge Lincoln D. Almond on 9/3/2014. (Noel, Jeannine) (Entered: 09/03/2014)
NOTICE of Hearing on Motion 67 MOTION for Protective Order : Motion Hearing set for 9/12/2014 02:00 PM in Courtroom A before Magistrate Judge Lincoln D. Almond. (Noel, Jeannine) (Entered: 09/03/2014)
AMENDED NOTICE of Hearing on Motion 67 MOTION for Protective Order , 70 MOTION to Strike MOTION to Compel Deposition Testimony : Motion Hearing set for 9/12/2014 02:00 PM in Courtroom A before Magistrate Judge Lincoln D. Almond. (Noel, Jeannine) (Entered: 09/03/2014)
71 RESPONSE in Opposition re 70 MOTION to Strike MOTION to Compel Deposition Testimony filed by Rhode Island Department of Corrections. (Shaw, Matthew) (Entered: 09/04/2014)

Case: 1:09-cv-169 As of: 01/30/2019 10:26 PM EST 14 of 19

09/04/2014 09/09/2014 09/12/2014
09/12/2014
09/16/2014 09/16/2014 09/17/2014 09/19/2014 09/19/2014 09/19/2014 09/19/2014 09/22/2014 09/24/2014

72 NOTICE of Appearance by Kelly A. McElroy on behalf of Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall (McElroy, Kelly) (Entered: 09/04/2014)
HEARING CANCELLED − Telephone Conference CANCELLED for 9/12/2014 04:00 PM before Magistrate Judge Lincoln D. Almond. (Noel, Jeannine) (Entered: 09/09/2014)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Motion Hearing held on 9/12/2014 re 67 MOTION for Protective Order filed by Rhode Island Department of Corrections, 70 MOTION to Strike MOTION to Compel Deposition Testimony filed by Jason Cook. (Miller, Shaw, McElroy) Argument; Court takes matter under advisement; Order to follow (Courtroom A at 2:15 pm.) (Noel, Jeannine) (Entered: 09/12/2014)
TEXT ORDER − Both motions are GRANTED in part. 67 Motion for Protective Order and 70 Motion to Strike and Compel. Counsel shall promptly confer in good faith and present an agreed form of an "attorney's eyes only" confidentiality protective order to the Court which applies to the search policy in issue and the portions of any deposition transcripts regarding such policy or search practices, protocols or training. The proposed order shall also provide that the filing of such documents with the Court, if necessary in motion practice, shall be done pursuant to Local Rule Gen 102. As to the policy itself, Plaintiff's counsel shall make a reasonable effort to ascertain the whereabouts of and, to retrieve if reasonably possible, any copies of the policy previously provided to Plaintiff or disseminated by him, and to report the results of such efforts to Defendants' counsel. So Ordered by Magistrate Judge Lincoln D. Almond on 9/12/2014. (Noel, Jeannine) (Entered: 09/12/2014)
73 MOTION for an Extension of Time to Complete Discovery with supporting memo filed by Jason Cook. Responses due by 10/3/2014 (Attachments: # 1 Supporting Memorandum)(Miller, Shad) (Entered: 09/16/2014)
74 MOTION to Expedite filed by Jason Cook. Responses due by 10/3/2014 (Miller, Shad) (Entered: 09/16/2014)
75 AGREED UPON CONFIDENTIALITY PROTECTIVE ORDER. So Ordered by Magistrate Judge Lincoln D. Almond on 9/17/2014. (Noel, Jeannine) (Entered: 09/17/2014)
76 STIPULATION and Confidentiality Agreement by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. (Shaw, Matthew) (Entered: 09/19/2014)
77 RESPONSE in Opposition re 73 MOTION for an Extension of Time to Complete Discovery with supporting memo filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. (Attachments: # 1 Supporting Memorandum)(Shaw, Matthew) (Entered: 09/19/2014)
TEXT ORDER granting 73 Motion for Extension of Time to Complete Discovery; Set/Reset Deadlines: (All Discovery due by 10/27/2014.) FINAL EXTENSION. So Ordered by Magistrate Judge Lincoln D. Almond on 9/19/2014. (Noel, Jeannine) (Entered: 09/19/2014)
Set/Reset Deadlines: All Discovery due by 10/27/2014; parties to submit letter(s) re: Summary Judgment on or before 10/31/2014. (Noel, Jeannine) (Entered: 09/19/2014)
TEXT ORDER granting 74 Motion to Expedite. So Ordered by Magistrate Judge Lincoln D. Almond on 9/22/2014. (Noel, Jeannine) (Entered: 09/22/2014)
TEXT ORDER Entering 76 STIPULATION and Confidentiality Agreement filed by Rhode Island Department of Corrections, Kirk Kaszyk, CO Freeman, Ashbel T. Wall, Corrections Officer Isom, Joseph Jankowski, Thomas Izzo, Stephen Boyd, Michele Auger, CO Nakhlis, CO Meunier, Jason Cook. So Ordered by Magistrate Judge Lincoln D. Almond on 9/24/14. (Jackson, Ryan) (Entered: 09/24/2014)

Case: 1:09-cv-169 As of: 01/30/2019 10:26 PM EST 15 of 19

09/26/2014 09/26/2014 10/02/2014 10/02/2014 10/02/2014 10/02/2014 10/09/2014
10/09/2014
10/24/2014 10/24/2014 10/28/2014 10/29/2014
10/30/2014
10/30/2014 11/03/2014

78 MOTION to Compel Further Responses filed by Jason Cook. Responses due by 10/14/2014 (Miller, Shad) (Entered: 09/26/2014)
79 MOTION to Expedite filed by Jason Cook. Responses due by 10/14/2014 (Miller, Shad) (Entered: 09/26/2014)
NOTICE of Hearing on Motion 78 MOTION to Compel Further Responses : Motion Hearing set for 10/9/2014 10:00 AM in Courtroom A before Magistrate Judge Lincoln D. Almond. (Noel, Jeannine) (Entered: 10/02/2014)
TEXT ORDER granting 79 Motion to Expedite. So Ordered by Magistrate Judge Lincoln D. Almond on 10/2/2014. (Noel, Jeannine) (Entered: 10/02/2014)
80 RESPONSE in Opposition re 78 MOTION to Compel Further Responses filed by Rhode Island Department of Corrections. (Shaw, Matthew) (Entered: 10/02/2014)
81 MEMORANDUM IN SUPPORT by Rhode Island Department of Corrections in support of 80 Response in Opposition to Motion to Compel Further Responses. (Attachments: # 1 Exhibit 1)(Shaw, Matthew) (Entered: 10/02/2014)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Motion Hearing held on 10/9/2014 re 78 MOTION to Compel Further Responses filed by Jason Cook. Shad Mill for the plaintiff; Kelly McElroy for the defendants. Attorneys argue; Court grants in part and denies in part; Court to issue an order. (Courtroom A at 10:11.) (Saucier, Martha) (Entered: 10/09/2014)
TEXT ORDER granting in part and denying in part 78 Motion to Compel. Plaintiffs Motion to Compel 78 is DENIED as to Request Nos. 4, 13 and 15 and GRANTED in part as to Request No. 3. Defendant RIDOC shall, within seven days, serve a supplemental response to Request No. 3 on Plaintiffs counsel confirming that it does not presently possess or otherwise have custody or control of the 2008 bulletin board notice in question and generally outlining its efforts to locate and produce such document. Plaintiff is also granted leave to propound a supplemental request for production which specifically identifies and requests production of the particular Inmate Rule Book which is the subject of his Motion to Compel. Defendant RIDOC shall respond to such Request within seven days of service.So Ordered by Magistrate Judge Lincoln D. Almond on 10/9/14. (Saucier, Martha) (Entered: 10/09/2014)
82 MOTION for Protective Order With Supporting Memo filed by Joseph Jankowski, Rhode Island Department of Corrections. Responses due by 11/10/2014 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Shaw, Matthew) (Entered: 10/24/2014)
83 MOTION to Expedite Consideration filed by Joseph Jankowski, Rhode Island Department of Corrections. Responses due by 11/10/2014 (Shaw, Matthew) (Entered: 10/24/2014)
NOTICE of TELEPHONIC Hearing on Motion 82 MOTION for Protective Order : TELEPHONIC Motion Hearing set for 10/29/2014 02:00 PM before Magistrate Judge Lincoln D. Almond. The court will intiate the call. Attorneys to participate: Shaw and Miller. (Noel, Jeannine) (Entered: 10/28/2014)
RESCHEDULING NOTICE of TELEPHONIC Hearing on Motion 82 MOTION for Protective Order :TELEPHONIC Motion Hearing RESCHEDULED for 10/30/2014 10:00 AM before Magistrate Judge Lincoln D. Almond. MOVED FROM 10/29/2014. THE COURT WILL INITIATE THE CALL WITH ATTORNEYS MILLER AND SHAW. (Noel, Jeannine) (Entered: 10/29/2014)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephonic Motion Hearing held on 10/30/2014 re 82 MOTION for Protective Order filed by Rhode Island Department of Corrections, Joseph Jankowski. (Miller, Shaw) Argument; Court grants motion; Order to follow (Courtroom A at 10:14 am.) (Noel, Jeannine) (Entered: 10/30/2014)
TEXT ORDER granting 82 Motion for Protective Order. So Ordered by Magistrate Judge Lincoln D. Almond on 10/30/2014. (Noel, Jeannine) (Entered: 10/30/2014)
84 MOTION for Protective Order With Supporting Memo filed by Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 11/20/2014 (Shaw, Matthew) (Entered: 11/03/2014)

Case: 1:09-cv-169 As of: 01/30/2019 10:26 PM EST 16 of 19

11/03/2014 11/04/2014 11/05/2014
11/05/2014 11/05/2014 11/07/2014 11/20/2014 11/20/2014 11/24/2014 12/02/2014 01/26/2015
01/29/2015
02/03/2015 02/03/2015 02/12/2015 02/12/2015

85 MOTION to Expedite Consideration filed by Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 11/20/2014 (Shaw, Matthew) (Entered: 11/03/2014)
NOTICE of TELEPHONIC Hearing on Motion 84 MOTION for Protective Order : TELEPHONIC Motion Hearing set for 11/5/2014 03:30 PM before Magistrate Judge Lincoln D. Almond. The court will initiate the call with attorneys Miller and Shaw. (Noel, Jeannine) (Entered: 11/04/2014)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: TELEPHONIC Motion Hearing held on 11/5/2014 re 84 MOTION for Protective Order filed by Rhode Island Department of Corrections, Ashbel T. Wall. (Miller, Shaw) via phone; Argument; Motion Granted in part; Order to follow (Courtroom A at 3:30 pm.) (Noel, Jeannine) (Entered: 11/05/2014)
TEXT ORDER granting in part as stated at today's hearing 84 Motion for Protective Order. So Ordered by Magistrate Judge Lincoln D. Almond on 11/5/2014. (Noel, Jeannine) (Entered: 11/05/2014)
TEXT ORDER denying as moot 83 Motion to Expedite; denying as moot 85 Motion to Expedite. So Ordered by Magistrate Judge Lincoln D. Almond on 11/5/2014. (Noel, Jeannine) (Entered: 11/05/2014)
NOTICE of Hearing: In Chambers/Summary Judgment Conference scheduled for 11/20/2014 at 10:30 AM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 11/07/2014)
Minute Entry for proceedings held before Chief Judge William E. Smith: In Chambers Conference/Summary Judgment Conference held on 11/20/2014; counsel present: S. Miller; M. Shaw, K. McElroy; M. Grant. (Jackson, Ryan) (Entered: 11/20/2014)
TEXT ORDER: Defendants' Motion for Summary Judgment due on or before 1/30/15; Plaintiff's Objection due on or before 3/2/15; Reply due on or before 3/16/15. So Ordered by Chief Judge William E. Smith on 11/20/14. (Jackson, Ryan) (Entered: 11/20/2014)
NOTICE of Hearing: Telephone Conference to discuss scheduling a settlement conference set for 12/2/2014 04:00 PM before Magistrate Judge Lincoln D. Almond. The court will initiate the call. (Noel, Jeannine) (Entered: 11/24/2014)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference with Attorneys DeLuca and Shaw held on 12/2/2014. (Noel, Jeannine) (Entered: 12/03/2014)
86 MOTION for an Extension of Time to File Dispositive Motions filed by Michele Auger, Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Kirk Kaszyk, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 2/12/2015 (Shaw, Matthew) (Entered: 01/26/2015)
TEXT ORDER granting 86 Motion for Extension of Time to File Dispositive Motions up to and including 2/13/15; Defendants' Motion for Summary Judgment due on or before 2/13/15; Plaintiff's Objection due on or before 3/16/15; Reply due on or before 3/30/15. So Ordered by Chief Judge William E. Smith on 1/29/15. (Jackson, Ryan) (Entered: 01/29/2015)
87 STIPULATION of Dismissal by Michele Auger. (Shaw, Matthew) (Entered: 02/03/2015)
88 STIPULATION of Dismissal by Kirk Kaszyk. (Shaw, Matthew) (Entered: 02/03/2015)
TEXT ORDER Entering 87 Dismissal Stipulation filed by Michele Auger, Jason Cook. So Ordered by Chief Judge William E. Smith on 2/12/15. (Jackson, Ryan) (Entered: 02/12/2015)
TEXT ORDER Entering 88 Dismissal Stipulation filed by Kirk Kaszyk, Jason Cook. So Ordered by Chief Judge William E. Smith on 2/12/15. (Jackson, Ryan) (Entered: 02/12/2015)

Case: 1:09-cv-169 As of: 01/30/2019 10:26 PM EST 17 of 19

02/13/2015 02/13/2015
02/13/2015
02/24/2015 03/04/2015 03/16/2015 03/17/2015 03/24/2015 03/30/2015 03/30/2015 03/30/2015

89 MOTION for Summary Judgment filed by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 3/2/2015 (Shaw, Matthew) (Entered: 02/13/2015)
90 STATEMENT OF UNDISPUTED FACTS by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall re 89 MOTION for Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG)(Shaw, Matthew) Modified on 2/18/2015 − CLERK&rsquo;S NOTE: Remote electronic access to the document has been restricted by the Clerk&rsquo;s Office as it contains one or more personal identifiers. Filer is directed to submit a redacted version. (Urizandi, Nisshy). (Entered: 02/13/2015)
91 MEMORANDUM IN SUPPORT by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall in support of 89 MOTION for Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG)(Shaw, Matthew) Modified on 2/18/2015 CLERK&rsquo;S NOTE: Remote electronic access to the document has been restricted by the Clerk&rsquo;s Office as it contains one or more personal identifiers. Filer is directed to submit a redacted version. (Urizandi, Nisshy). (Entered: 02/13/2015)
92 MOTION for an Extension of Time to File Response/Reply to Defendants' Motion for Summary Judgment with supporting memo filed by Jason Cook. Responses due by 3/13/2015 (Attachments: # 1 Supporting Memorandum)(Miller, Shad) (Entered: 02/24/2015)
TEXT ORDER granting 92 Motion for Extension of Time to File Response re: 89 MOTION for Summary Judgment; Response due by 3/16/2015. So Ordered by Chief Judge William E. Smith on 3/4/15. (Jackson, Ryan) (Entered: 03/04/2015)
93 MOTION for an Extension of Time to File Response/Reply as to 89 MOTION for Summary Judgment with supporting memo filed by Jason Cook. Responses due by 4/2/2015 (Attachments: # 1 Supporting Memorandum)(Miller, Shad) (Entered: 03/16/2015)
94 RESPONSE to Motion re 93 MOTION for an Extension of Time to File Response/Reply as to 89 MOTION for Summary Judgment filed by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall. (Shaw, Matthew) (Entered: 03/17/2015)
TEXT ORDER granting 93 Motion for Extension of Time to File Response to 89 MOTION for Summary Judgment; Responses due by 3/30/2015. So Ordered by Chief Judge William E. Smith on 3/24/15. (Jackson, Ryan) (Entered: 03/24/2015)
95 RESPONSE to Motion re 89 MOTION for Summary Judgment with supporting memo filed by Jason Cook. (Miller, Shad) (Entered: 03/30/2015)
96 STATEMENT OF DISPUTED FACTS by Jason Cook re 89 MOTION for Summary Judgment . (Miller, Shad) (Entered: 03/30/2015)
97 STATEMENT OF UNDISPUTED FACTS by Jason Cook re 89 MOTION for Summary Judgment . (Miller, Shad) (Entered: 03/30/2015)

Case: 1:09-cv-169 As of: 01/30/2019 10:26 PM EST 18 of 19

03/30/2015
04/03/2015
04/09/2015 04/09/2015 04/09/2015 04/09/2015 04/09/2015 04/27/2015 04/27/2015 04/27/2015 04/27/2015 05/07/2015 05/08/2015 05/12/2015 05/22/2015 07/01/2015

98 RESPONSE in Opposition re 89 MOTION for Summary Judgment filed by Jason Cook. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit)(Miller, Shad) (Entered: 03/30/2015)
99 MOTION for an Extension of Time to File Response/Reply as to 98 Response in Opposition to Motion,, for Summary Judgment, filed by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 4/20/2015 (Shaw, Matthew) (Entered: 04/03/2015)
100 NOTICE by Jason Cook Withdrawal of Appearance (J. Azevedo) (Miller, Shad) (Entered: 04/09/2015)
101 NOTICE by Jason Cook Withdrawal of Appearance (B. Goldberg) (Miller, Shad) (Entered: 04/09/2015)
102 NOTICE by Jason Cook Withdrawal of Appearance (J. Mega) (Miller, Shad) (Entered: 04/09/2015)
103 NOTICE by Jason Cook Withdrawal of Appearance (M. Eskey) (Miller, Shad) (Entered: 04/09/2015)
TEXT ORDER granting 99 Motion for Extension of Time to File Reply re: 89 MOTION for Summary Judgment; Replies due by 4/27/2015. So Ordered by Chief Judge William E. Smith on 4/9/15. (Jackson, Ryan) (Entered: 04/09/2015)
104 RESPONSE in Support re 89 MOTION for Summary Judgment filed by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall. (Shaw, Matthew) (Entered: 04/27/2015)
105 STATEMENT OF DISPUTED FACTS by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall re 104 Response in Support of Motion,. (Attachments: # 1 Exhibit HH−MM)(Shaw, Matthew) (Entered: 04/27/2015)
106 RESPONSE IN OPPOSITION by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall re 96 Statement of Disputed Facts . (Shaw, Matthew) (Entered: 04/27/2015)
107 RESPONSE IN OPPOSITION by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall re 97 Statement of Undisputed Facts . (Shaw, Matthew) (Entered: 04/27/2015)
108 MOTION for Leave to File Document filed by Jason Cook. Responses due by 5/26/2015 (Miller, Shad) (Entered: 05/07/2015)
109 RESPONSE in Opposition re 108 MOTION for Leave to File Document filed by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall. (Shaw, Matthew) (Entered: 05/08/2015)
TEXT ORDER granting 108 Motion for Leave to File Reply up to and including 5/22/15. So Ordered by Chief Judge William E. Smith on 5/12/15. (Jackson, Ryan) (Entered: 05/12/2015)
110 RESPONSE in Opposition re 89 MOTION for Summary Judgment (Sur Reply) filed by Jason Cook. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Miller, Shad) (Entered: 05/22/2015)
NOTICE of Hearing on 89 MOTION for Summary Judgment: Motion Hearing scheduled for 9/17/2015 at 10:00 AM in Courtroom 2 before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 07/01/2015)

Case: 1:09-cv-169 As of: 01/30/2019 10:26 PM EST 19 of 19

07/15/2015 09/17/2015 09/17/2015
09/23/2015 09/24/2015 10/27/2015 11/02/2015

111 MOTION to Withdraw as Attorney filed by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall. Responses due by 8/3/2015 (Partington, Rebecca) (Entered: 07/15/2015)
NOTICE of Hearing: In Chambers Conference scheduled for 9/24/2015 at 10:00 AM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 09/17/2015)
Minute Entry for proceedings held before Chief Judge William E. Smith: Motion Hearing held on 9/17/2015 re 89 MOTION for Summary Judgment filed by Rhode Island Department of Corrections, CO Freeman, Ashbel T. Wall, Corrections Officer Isom, Joseph Jankowski, Thomas Izzo, Stephen Boyd, CO Nakhlis, CO Meunier. (Miller, Shaw) Court addresses. Arguments heard. Court questions. Attorneys respond. Court takes matter under advisement and asks that the parties meet him in chambers at the conclusion of this hearing. Recess. (Courtroom 2 at 10:10 a.m.) (Urizandi, Nisshy) (Entered: 09/17/2015)
Reset Hearings re: Notice of In Chambers Conference RE−SCHEDULED for 9/24/2015 at 9:15 AM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 09/23/2015)
Minute Entry for proceedings held before Chief Judge William E. Smith: In Chambers Conference held on 9/24/2015; counsel present: S. Miller, A. DeLuca; R. Partington, M. Shaw, K. McElroy. (Jackson, Ryan) (Entered: 09/24/2015)
112 STIPULATION of Dismissal by Stephen Boyd, CO Freeman, CO Meunier, CO Nakhlis, Corrections Officer Isom, Thomas Izzo, Joseph Jankowski, Rhode Island Department of Corrections, Ashbel T. Wall. (Shaw, Matthew) (Entered: 10/27/2015)
TEXT ORDER Entering 112 Dismissal Stipulation filed by Rhode Island Department of Corrections, CO Freeman, Ashbel T. Wall, Corrections Officer Isom, Joseph Jankowski, Thomas Izzo, Stephen Boyd, CO Nakhlis, CO Meunier, Jason Cook. So Ordered by Chief Judge William E. Smith on 11/2/2015. (Jackson, Ryan) (Entered: 11/02/2015)

 
 Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 1 of 30 PageID #: 264

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

JASON COOK., Plaintiff,

v.

ASHBEL T. WALL, individually and in his official capacity as director of the Rhode Island Department of Corrections; STEP:f-IEN BOYD, individually and in his official capacity as a warden at the Rhode Island Department of Corrections; MICl-IELE AUGER, individually and in her official capacity as a deputy warden at the Rhode Island Department of Corrections; I<:IRI< I<ASZYI<, individually and in his official capacity as a deputy warden at the Rhode Island l)epartment of Corrections; Tl-IOMA.S IZZO, individually and in his official capacity as a correctional officer at the Rhode Island Department of Corrections; : JOSEP:H JANI<:.OWSI<I, individually and in : his official capacity as a correctional officer at : the Rhode Island Department of Corrections; : ANl)REY NAI<HLIS, individually and in his official capacity as a correctional officer : at the Rhode Island Department of Corrections; "JOHN DOE" MEUNIER, individually and in his official capacity as a correctional officer at the Rhode Island Department of Corrections; RUSSELL FREEMAN, individually and in his official capacity as a correctional officer at the Rhode : Island Department of Corrections; RAYMOND LAWSON, individually and in : his official capacity as a correctional officer at : the Rhode Island Department of Corrections; : "JANE DOE" ISOM, individually and in her : official capacity as a correctional officer at the Rhode Island Department of Corrections;: RHODE ISLAND DEPARTMENT OF CORRECTIONS
Defendants.

1 :09-cv-00169-S

Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 2 of 30 PageID #: 265

FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF, AND DAMANGES

I. PRELIMINARY STATEMENT

This is an action for declaratory and mandatory injunctive relief and for

compensatory and punitive damages to redress deprivation, under color of law, of rights,

privileges and im1nunities secured to the Plaintiff, Jason Cook, by the First, Fifth, Eighth and

Fourteenth Amendments of the United States Constitution and by Article I, Sections 2 and

21 of the Rhode Island Constitution. In support of his Complaint against Defendants,

Plaintiff states as follows:

II. JURISDICTION

1.

Jurisdiction of this I-Ionorable Court is proper under 28 U.S.C. §§1331, 1343,

1367, 2201, 2202 and 42 U.S.C. §§1983, 1988.

2.

Venue is proper in this district pursuant to 28 U.S.C. §1391(b)(2) in that a

substantial part of the events or omissions giving rise to this claim occurred within the

judicial district of Rhode Island.

III. PARTIES

3.

Plaintiff Jason Cook ("Cook") is now and at all times pertinent hereto has

been a resident and citizen of the State of Rhode Island and of the United States. Cook is

now and at all times pertinent hereto has been incarcerated at the John J. Moran facility at

the Rhode Island Department of Corrections since January 2006.

4.

Defendant Ashbel T. Wall ("Wall") is a citizen and resident of the State of

Rhode Island and of the United States. Wall, who is sued herein individually and in his

official capacity, is now and at all times pertinent hereto has been the Director of the Rhode

Island I)epartment of Corrections where Plaintiff Cook has been detained. As Director,

2

Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 3 of 30 PageID #: 266

Wall is statutorily responsible for the management, administration and supervision of the

Rhode Island prison system, pursuant to R.I. Gen. Laws § 42-56-10 et. seq. As such, he is the

supervising authority and commanding officer of the Defendant Correctional Officers Izzo,

N akhlis, Meunier, Jankowski, Freeman and Lawson and was responsible for the training and

conduct of said Defendants. Wall was also responsible by law for enforcing the regulations

of the Rhode Island Department of Corrections and for insuring that correctional officers

obey the laws of the State of Rhode Island and of the United States. Wall had actual

knowledge of violations of Mr. Cook's constitutional rights and knew of the practices that

led to them. He did not act to stop or curb them. :He created, maintained, and implemented

policies or customs allowing or encouraging these unlawful acts.

5.

Defendant Stephen Boyd ("Boyd"), upon infonnation and belief, is a citizen

and resident of the State of Rhode Island and of the United States. Boyd, who is sued herein

individually and in his official capacity, is now and at all times pertinent hereto has been the

Warden of a medium security facility at the Rhode Island Department of Corrections where

Plaintiff Cook has been detained. As Warden, Boyd is statutorily responsible for the

managetnent, administration and supervision of the medium security facility which has

housed Plaintiff Cook pursuant to R.I. Gen. Laws § 42-56-1 et. .req. As such, he is the

supervising authority and commanding officer of the Defendant Correctional Officers Izzo,

Nakhlis, Meunier, Jankowski, Freeman and Lawson and was responsible for the training and

conduct of said Defendants. Boyd was also responsible by law for enforcing the regulations

of the Rhode Island Department of Corrections and for insuring that correctional officers

obey the laws of the State of Rhode Island and of the United States. He had actual

knowledge of violations of Mr. Cook's constitutional rights and knew of the practices that

3

Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 4 of 30 PageID #: 267

led to them. l-Ie did not act to stop or curb them. l-Ie created, maintained, and implemented

policies or customs allowing or encouraging these unlawful acts.

6.

Defendant rv1ichele Auger ("Auger"), upon information and belief, is a

citizen and resident of the State of Rhode Island and of the United States. Auger, who is

sued herein individually and in her official capacity, is now and at all times pertinent hereto

has been the Deputy Warden of a 1nedium security facility at the Rhode Island Department

of Corrections where Plaintiff Cook has been detained. As Deputy Warden, Auger is

statutorily responsible for the management, administration and supervision of the medium

security facility which has housed Plaintiff Cook. As such, she is a supervising authority and

commanding officer of the Defendant Correctional Officers Izzo, Nakhlis, Meunier,

Jankowski, Freeman and Lawson and was responsible for the training and conduct of said

Defendants. Auger was also responsible by law for enforcing the regulations of the Rhode

Island Department of Corrections and for insuring that correctional officers obey the laws

of the State of Rhode Island and of the United States. She had actual knowledge of

violations of rvfr. Cook's constitutional rights and knew of the practices that led to them.

She did not act to stop or curb them. She created, maintained, and/or implemented policies

or customs allowing or encouraging these unlawful acts.

7.

Defendant I<irk l(aszyk ("I<:.aszyk"), upon information and belief, is a citizen

and resident of the State of Rhode Island and of the United States. I<aszyk, who is sued

herein individually and in his official capacity, is now and at all times pertinent hereto has

been the Deputy Warden of a medium security facility at the Rhode Island Department of

Corrections where Plaintiff Cook has been detained. As Deputy Warden, I<aszyk is

statutorily responsible for the management, administration and supervision of the medium

security facility which has housed Plaintiff Cook. As such, he is a supervising authority and

4

Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 5 of 30 PageID #: 268

commanding officer of the Defendant Correctional Officers Izzo, N akhlis, Meunier,

Jankowski, Freeman and Lawson and was responsible for the training and conduct of said

Defendants. I<aszyk was also responsible by law for enforcing the regulations of the Rhode

Island Department of Corrections and for insuring that correctional officers obey the laws

of the State of Rhode Island and of the United States. l-Ie had actual knowledge of

violations of Mr. Cook's constitutional rights and knew of the practices that led to them. He

did not act to stop or curb them. l-Ie created, maintained, and/ or implemented policies or

customs allowing or encouraging these unlawful acts.

8.

Defendant Joseph Jankowski (''Jankowski"), upon information and belief, is

a citizen and resident of the State of Rhode Island. l-Ie is and was at all times relevant hereto

a correctional officer in the Rhode Island Department of Corrections in the State of Rhode

Island acting in such capacity as the agent, servant and employee of Defendant Department

of Corrections. He is sued herein indiYidually and in his official capacity. He Yiolated Mr.

Cook's constitutional rights, had actual knowledge of violations of l\fr. Cook's constitutional

rights and/ or knew of the practices that led to the1n. He did not act to stop or curb them.

I Ie created, maintained, and/ or ilnplemented policies or customs allowing or encouraging

these unlawful acts.

9.

Defendant Thomas Izzo ("Izzo"), upon infonnation and belief, is a citizen

and resident of the State of Rhode Island. He is and was at all times relevant hereto a

correctional officer in the Rhode Island Department of Corrections in the State of Rhode

Island acting in such capacity as the agent, servant and employee of Defendant Department

of Corrections. f-Ie is sued herein individually and i11 his official capacity. He violated Mr.

Cook's constitutional rights, had actual knowledge of violations of Mr. Cook's constitutional

rights and/or knew of the practices that led to them. He did not act to stop or curb them.

5

Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 6 of 30 PageID #: 269
He created, maintained, and/or implemented policies or customs allowing or encouraging these unlawful acts.
10. Defendant Andrey Nakhlis ("Nakhlis"), upon information and belief, 1s a citizen and resident of the State of Rhode Island. 1:-Ie is and was at all times relevant hereto a correctional officer in the Rhode Island Department of Corrections in the State of Rhode Island acting in such capacity as the agent, servant and employee of Defendant Department of Corrections. He is sued herein individually and in his official capacity. 1:-Ie violated Mr. Cook's constitutional rights, had actual knowledge of violations of Mr. Cook's constitutional rights and/or knew of the practices that led to them. He did not act to stop or curb them. 1:-Ie created, maintained, and/ or implemented policies or customs allowing or encouraging these unlawful acts.
11. Defendant "John Doe" Meunier ("Meunier"), upon information and belief, is a citizen and resident of the State of Rhode Island. He is and was at all times relevant hereto a correctional officer in the Rhode Island Department of Corrections in the State of Rhode Island acting in such capacity as the agent, servant and employee of Defendant Department of Corrections. He is sued herein individually and in his official capacity. He violated ~1r. Cook's constitutional rights, had actual knowledge of violations of Mr. Cook's constitutional rights and/ or knew of the practices that led to then1.. He did not act to stop or curb them. 1:-Ie created, maintained, and/ or implemented policies or customs allowing or encouraging these unlawful acts.
12. Defendant Russell Freeman ("Freeman"), upon information and belief, is a citizen and resident of the State of Rhode Island. He is and was at all times relevant hereto a correctional officer in the Rhode Island Department of Corrections in the State of Rhode Island acting in such capacity as the agent, servant and employee of Defendant Department
6

Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 7 of 30 PageID #: 270

of Corrections. l-Ie is sued herein individually and in his official capacity. He violated Mr.

Cook's constitutional rights, had actual knowledge of violations of Mr. Cook's constitutional

rights and/or knew of the practices that led to them. He did not act to stop or curb them.

He created, maintained, and/or implemented policies or customs allowing or encouraging

these unlawful acts.

13. Defendant Raymond Lawson ("Lawson"), upon information and belief, is a

citizen and resident of the State of Rhode Island. l-Ie is and was at all tin'les relevant hereto a

correctional officer in the Rhode Island Department of Corrections in the State of Rhode

Island acting in such capacity as the agent, servant and employee of Defendant Department

of Corrections. He is sued herein individually and in his official capacity. l-Ie violated Mr.

Cook's constitutional rights, had actual knowledge of violations of 1Ir. Cook's constitutional

rights and/ or knew of the practices that led to them. l-Ie did not act to stop or curb them.

l-Ie created, maintained, and/ or implemented policies or customs allowing or encouraging

these unlawful acts.

14.

("Isom"), upon information and belief, is a

citizen and resident of the State of Rhode Island. She is and was at all times relevant hereto

a correctional officer in the Rhode Island Department of Corrections in the State of Rhode

Island acting in such capacity as the agent, servant and einployee of Defendant Department

of Corrections. She is sued herein individually and in her official capacity. She violated Mr.

Cook's constitutional rights, had actual knowledge of violations of Mr. Cook's constitutional

rights and/or knew of the practices that led to them. She did not act to stop or curb them.

She created, maintained, and/or implemented policies or customs allowing or encouraging

these unlawful acts.

7

Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 8 of 30 PageID #: 271
15. Defendant Rhode Island Department of Corrections ("RIDOC") is a department established to provide for the custody, care, discipline, training, treatment, and
study of persons committed to state correctional institutions pursuant to R.I. Gen. Laws §
42-56-1 et. seq. At all relevant times hereto, the RIDOC employed defendants Wall, Boyd, Auger, I<aszyk, Izzo, Nakhlis, Meunier, Jankowski, Freeman, Isom and La"\vson. At all times mentioned herein, the RIDOC was duly organized and existing under the laws of the State of Rhode Island and of the United States.
16. At all times complained of herein, defendants Wall, Boyd, Auger, I<aszyk, Izzo, Nakhlis, Meunier, Jankowski, Freeman, Lawson, Isom and the RIDOC were acting under color of State law.
17. Plaintiff is informed and believes and thereon alleges that at all times mentioned herein, the defendants were and are officials of the State of Rhode Island and/or correctional officers for the RIDOC. In doing the things herein described, each of the above named defendants acted "\vithin the course and scope of said employment, and each was the agent, servant and employee of each of their co-defendants. As such, the acts are imputed to the defendant RIDOC and defendants Wall, Boyd, Auger and I<aszyk. In addition, the individual defendants' conduct as further described in this Complaint, executes or itnpletnents an official policy of the RIDOC. Said policy can be found in regulations, laws, policy statements, rules or decisions officially adopted by state actors, or in a pattern or persistent practice sufficiently known to and approved by the RIDOC and defendants Wall, Boyd, Auger and I<aszyk to constitute a custom and policy.
IV. FACTS 18. On October 22, 2007, Jason Cook issues a public statement published in the ProtJidence Journal criticizing a newly implemented Department of Corrections policy that
8

Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 9 of 30 PageID #: 272
limited publications available to inmates: DOC Policy 24.01-5. See Article attached as Exhibit 1.
19. Shortly thereafter, Cook is flred from his kitchen job by Correctional Offlcer Izzo under the pretext that Cook "\vas caught on a video camera stealing state property.
20. On October 30, 2007, Lt. Meunier conducts a disciplinary hearing and flnds Cook guilty, without viewing the videotape, but nonetheless tells Cook that he would review the video. The disciplinary report lists Cook's sanctions as "reprimand," not loss of employment. On November 7, 2007, Lt. Meunier tells Cook that the video tape showed that Cook had done nothing wrong. Immediately, Cook appeals Meunier's guilty flnding the same day to Deputy Warden Auger. After waiting several weeks and not receiving a response from Auger, Cook resubmits his appeal on or about December 8, 2007. See Report and Letters attached as Exhibit 2.
21. On January 15, 2008, Cook writes a letter to Deputy Warden Auger and Warden Boyd asking about the status of his appeal. On January 25, 2008, Warden Boyd sends a memo to Cook stating that Cook was found not guilty and thus there was no basis for his appeal. See Letter and 1\1emo attached as Exhibit 3.
22. On February 7, 2008, Cook sends a letter to Director Ashbel T. Wall asking for dan1.ages for his wrongful tennination: lost wages and lost goodtime. On February 9, 2008, Director Wall denies Cook's request. See Letters attached as Exhibit 4.
23. On February 20, 2008, the Rhode Island affiliate of the American Civil Liberties Union intervenes on Cook's behalf in the dispute over inmate mail and writes the Department of Corrections to halt the new policy. See Letter attached as Exhibit 5.
9

Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 10 of 30 PageID #: 273
24. Shortly thereafter, during a module wide shakedown, Correctional Officers Lawson and Nakhlis violently direct and/ or conduct a search of Cook's cell and destroy his personal property, including his food items. See Grievance attached as Exhibit 6.
25. Cook and his mother, Rita Connell, complain to the Department of Corrections Office of Inspections about the violent search and damaged property.
26. The Chief Investigator tells Cook to inform other inmates in his module with similar complaints regarding the search to direct complaints to him.
27. On or about March 3, 2008, in conformance with the Chief Investigator's stated desire, Cook posts a notice on an inmate bulletin board informing other inmates that any complaints they might have regarding the violent search should be directed to the Investigator.
28. On or about March 4, 2008, Correctional Officer Lawson removes Cook's posting and disciplines Cook for "engaging in_ or encouraging a group demonstration and/ or activities." Cook is strip searched and taken to segregation. Cook is booked two days later, on or about J'vfarch 6, 2008. See Report attached as Exhibit 7.
29. Subsequently, a disciplinary board hearing with Lt. Jankowski is repeatedly postponed on or about March 7, 2008, March 11, 2008 and March 14, 2008. Cook writes appeals to both Warden Boyd and Lt. Jankowski protesting r_tis condition. _i\._fter rwo Weeks of enduring segregation, Cook fmally has a hearing, on or about March 18, 2008, where he is unable to present and/ or question witnesses and Lt. Jankowski fails to present any material evidence against Cook. After Cook is found guilty and sanctioned with 30 days in segregation, the loss of 30 days of goodtime and the recommendation to be downgraded to the more restrictive maximum security facility, Lt. Jankowski turns off the tape recorder and
10

Case 1:09-cv-00169-WES-LDA Document 26 Filed 01/25/10 Page 11 of 30 PageID #: 274
says that 'this is what happens when you get the ACLU involved in our business.' See Reports attached as Exhibit 8. See Appeals attached as Exhibit 9.
30. Thereafter Cook appeals Jankowski's fmding to Warden Boyd, who subsequently denies Cook's appeal on or about March 24, 2008. See Warden's Review attached as Exhibit 10.
31. In a letter dated April 7, 2008, the RI ACLU writes to Warden Boyd and requests that all copies and/ or recording of Cook's disciplinat-y hearings be retained. Shortly thereafter, in a me1no dated April 11, 2008, the Department of Corrections rescinds the change in gift policy that Cook and the RI ACLU publicly criticized. See Letter and Memo attached as Exhibit 11.
32. On or about May 30, 2008, Cook is once again strip searched and thrown into segregation under the pretext that a letter he wrote to the Parole Board was threatening. A June 5, 2008 report from the Special Investigation linit promises that a Classification Board will convene to address Cook's status in segregation. No Board is convened and Cook stays in segregation for 18 days. See Letter and Report attached as Exhibit 12.
33. On or about June 17, 2008, Cook sends a grievance to Warden Boyd protesting his placement in segregation and Boyd responds to Cook with a memo stating that Cook was put into segregation pending an investigation. On this day, Cook is released fro1n segregation. See Memo and Grievances attached as Exhibit 13.
34. On or about September 8, 2008, Cook sends a letter to Director Wall protesting the lack of a response to his grievances. See Letter attached as Exhibit 14.
35. Two days later, Cook is subjected to a strip search and his cell is searched by Correctional Officers Freeman and Lawson and his property is destroyed. The Officers look through Cook's legal materials and Cook is asked by the Officers if he has communicated
11

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further with any Prot)idence Journal reporters. Shortly thereafter, Cook is yet again strip searched and thrown into segregation, where he will ultimately stay for 4 more days. l-Ie sends a letter and a grievance directly to Warden Boyd, who fails to respond. See Grievance and Letter attached as Exhibit 15.
36. On or about May 14, 2009, after the instant lawsuit was filed, defendant Is om inJormed Cook that she was movin.g him into a notorious and less safe block and said, "[g]rieve that motherfucker." The next day, upon learning of complaints from Cook about her actions, defendant Isom did cause Cook to be sent to segregation for seven days on the allegation that he was distributing his attorney's business card and thereby creating a disturbance. While in segregation, Cook lost wages. Soon thereafter, the allegations of creating a disturbance were found to be "without merit." See Grievances and Letter attached as Exhibit 16.
37. Each and all of Cook's detailed grievances and appeals against the punitive measures of being placed in segregation, losing his job, losing his wages and losing his goodtilne have been denied and his administrative remedies have been exhausted.
V.COUNTI 42 U .S.C. § 1983 FIRST AND FOURTEENTH AMENDMENT VIOLATIONS DEFENDANTS RIDOC, WALL, BOYD, AUGER, KASZYK, IZZO, 1'-~AKHLIS, MEUl'"~IER, JANKOWSKI, FREEl\fAl'"~, ISOl\1 At~D LAWSOt~ 38. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 37 as if incorporated and reiterated herein. 39. At all times relevant herein, each of the State Defendants was acting under color of state law by exercising power made possible because the State Defendants were clothed with the authority of state law.
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40. The actions of State Defendants Wall, Boyd, Auger, I<aszyk, Meunier, and Izzo in retaliating against Cook for publicly criticizing policy changes at the Rhode Island Department of Corrections by booking, disciplining and terminating his employment violated Cook's First and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
41. The actions of State Defendants Lawson and Nakhlis in retaliating against Cook for publicly criticizing policy changes at the Rhode Island Department of Corrections by violently searching his cell and destroying his property violated Cook's First and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
42. The actions of State Defendants Lawson, Jankowski, Wall, Boyd, Auger and I<aszyk in booking, disciplining and locking Cook up in segregation on or about March 4, 2008 in retaliation for Cook's public comments, his affiliation with the RI ACLV and for Cook's posting of a notice on a bulletin board violated Cook's First and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
43. The actions of State I)efendants Lawson, Auger, I<aszyk, Wall and Boyd in locking Cook up in segregation on or about ~vfay 30, 2008 in_ retaliation for his public comments and for writing a letter of protest to the Parole Board violated First and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
44. The actions of State Defendants Freeman and Lawson in strip searching Cook's person and searching his cell in retaliation for his public comments and to learn whether Cook had communicated with a Providence Journal reporter violated Cook's First
13

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and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
45. The actions of State Defendants Lawson, Freeman, Auger, K_aszyk, Wall and Boyd in locking Cook up in segregation on or about September 11, 2008 in retaliation for Cook's public comments violated Cook's First and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's- constitutional rights.
46. The actions of State Defendants Isom, Auger, I<:.aszyk, Wall and Boyd in_ locking Cook up in segregation on or about May 15, 2009 in retaliation for his public comments, for his filing of grievances and for distributing his attorney's business card displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
47. The actions of State Defendants Wall, Boyd, Auger, Izzo, Nakhlis, J\1eunier, Jankowski, Freeman, Isom and Izzo violated 42 U.S.C. 983 by depriving Jason Cook of his rights under the First and Fourteenth Amendments to the United States Constitution.
48. As a direct and proximate result of the actions by each of the Defendants, Wall, Boyd, Auger, Izzo, Nakhlis, Meunier, Jankowski, Freeman, Isom and Izzo,Jason Cook lost rJ.s job, his wages, goodtime and his liberty.
49. The detentions, prosecutions, searchings and multiple charges brought against the Plaintiff were not brought in good faith, but rather, were brought by the defendant Wall and those acting in concert with him in bad faith to harass the Plaintiff and interfere with his right to freedom of speech to speak out about conditions at the RIDOC in derogation of rights secured to the Plaintiff by the First and Fourteenth Amendments to the United States Constitution.
14

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SO. The defendant Wall's bad faith is made manifest not only by the repeated

detentions and multiple charges and actions taken against the Plaintiff, but also by

declarations of officers acting under his direction and control of their determination to

prevent the Plaintiff from expressing his opinions and disseminating information about his

cause in any way to members of the general public.

51. The actions of the defendants in the detentions, prosecutions, destruction of

property, unlawful searches, and charging the Plaintiff with multiple violations of RIDOC

rules, policies or regulations cause Plaintiff to suffer irreparable harm because the

defendants' conduct has penalized and threatened to penalize the Plaintiff when he is

engaging in activities that are protected by the First and Fourteenth Amendments to the

United States Constitution.

52. Plaintiff has no adequate remedy at law to redress the irreparable injury

which defendants have caused and continue to cause him.

WI-IEREFORE, PlaintiffJason Cook prays that this Honorable Court:

a.

Declare the actions of the defendants to be unconstitutional and in

derogation of the First and Fourteenth Amendment rights of the Plaintiff in that the

defendants acted arbitrarily, capriciously and without permissible guidelines thereby denying

to Plaintiff the right to free speech as guaranteed by the First and Fourteenth Amendinents

to the United States Constitution;

b.

Declare that the administrative and penal actions under which defendants

have restricted Plaintiff's activities are violations of Plaintiff's right to free speech as

guaranteed to all citizens pursuant to the First and Fourteenth Amendments to the United

States Constitution;

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c.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees and agents from prohibiting or in any way interferin_g

with Plaintiff's right to free speech to newspapers, the public, the parole board or his

association with any organization such as the RI ACLU by the issuance of a permanent

injunction;

d.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from bringing any further disciplinary actions against the Plaintiff as it pertains to speech by

the issuance of a permanent injunction;

e.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert \Vith them

from continuing to prosecute Plaintiff for those charges set forth herein by issuance of a

permanent injunction;

f.

Award Plaintiff all reasonable compensatory damages, including for lost

wages, lost goodtin~e, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

g.

Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

h.

Award Plaintiff reasonable attorneys' fees, expert fees and court costs under

42 U.S.C. §1988 for the prosecution of his 42 U.S.C. §1983 claims;

1.

Award Plaintiff reasonable attorneys' fees and court costs pursuant to federal

and state law;

J·

Award Plaintiff legal interest and costs; and

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k.

Award such other and further relief as this Honorable Court deems right and

just.

VI. COUNT II
42 u.s.c. § 1983
FIFTH AND FOURTEENTH AMENDMENT VIOLATIONS
DEFENDANTS RIDOC, WALL, BOYD, AUGER, KASZYK, IZZO,
MEUNIER, JANKOWSKI, FREEMAN, ISOM AND LAWSON

53. Plaintiff repeats and realleges each and every allegation contained in

paragraphs 1 through 52 as if incorporated and reiterated herein.

54. At all times relevant herein, each of the State Defendants was acting under

color of state law by exercising power made possible because the State Defendants were

clothed with the authority of state law.

55. The actions of State Defendants \~all, Boyd, Auger, I<.aszyk, Meunier and

Izzo in terminating the Plaintiff from his employment without the procedural due process

guaranteed under the lTnited States Constitution and the lv1orris rules violated Cook's due

process rights and displayed both deliberate indifference and a reckless disregard of Cook's

constitutional rights.
56. The actions of State Defendants Lawson, Janko\vski, Auger, I<aszyk, Wall

and Boyd in booking, disciplining and locking Cook up in segregation on or about March 4,

2008 without substantial evidence violated Cook's due process rights and displayed both

deliberate indifference and a reckless disregard of Cook's constitutional rights.

57. The actions of State Defendants Lawson, Auger, I<.aszyk, Wall and Boyd in

locking Cook up in segregation on or about May 30, 2008 without substantial evidence

violated Cook's due process rights and displayed both deliberate indifference and a reckless

disregard of Cook's constitutional rights.

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58. The actions of State Defendants Freeman, Lawson, Auger, K.aszyk, Wall and Boyd in locking Cook up in segregation on or about September 11, 2008 without substantial evidence violated Cook's due process rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
59. The actions of State Defendants Isom, Auger, I(aszyk, Wall and Boyd in locking Cook up in segregation on or about May 15, 2009 without substantial evidence violated Cook's due process rights and displayed both deliberate indifference and a recldess disregard of Cook's constitutional rights.
60. The actions of State Defendants Wall, Boyd, Auger, I(aszyk, Izzo, lVIeunier, Freeman, Jankowski, Isom and Lawson violated 42 U.S.C. §1983 by depriving Jason Cook of his rights under the Fifth and Fourteenth Amendn1ents to the United States Constitution.
61. As a direct and proximate result of the actions by each of the Defendants, \\?all, Boyd, Auger, Kaszyk, Izzo, :J\1eunier, Freeman, Jankowski, Isom and Lawson, Jason Cook lost his job, his wages, goodtitne and his liberty.
62. The detentions, prosecutions, searchings and multiple charges brought against the Plaintiff were not brought in good faith, but rather, were brought by the defendant Wall and those acting in concert with him in bad faith to harass the Plaintiff and interfere with his right to due process as secured to the Plaintiff by the Fifth and Fourteenth Amendments to the United States Constitution.
63. The actions of the defendants in the detentions, prosecutions, destruction of property, unlawful searches, and charging the Plaintiff with multiple violations of RIDOC rules, policies or regulations cause Plaintiff to suffer irreparable harm because the defendants' conduct has penalized and threatened to penalize the Plaintiff in violation of his
18

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due process rights as protected by the Fifth and Fourteenth Amendments to the United

States Constitution.

64. Plaintiff has no adequate remedy at law to redress the irreparable injury

which defendants have caused and continue to cause him.

WHEREFORE, PlaintiffJason Cook prays that this Honorable Court:

a.

Declare the actions of the defendants to be unconstitutional and in

derogation of the Fifth and Fourteenth Amendment rights of the Plaintiff in that the

defendants acted arbitrarily, capriciously and without permissible guidelines thereby denying

to Plaintiff the right to procedural and substantive due process as guaranteed by the Fifth

and Fourteenth Amendments to the United States Constitution;

b.

Declare that the administrative and penal actions under which defendants

have restricted Plaintiffs liberties are violations of Plaintiffs procedural and substantive due

process rights as guaranteed to all citizens pursuant to the Fifth and Fourteenth

Amendments to the L~nited States Constitution;

c.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees and agents from prohibiting or in any way interfering

with Plaintiffs procedural and substantive due process rights by the issuance of a permanent

injunction;

d.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from continuing to prosecute Plaintiff for those charges set forth herein by issuance of a

permanent injunction;

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e.

Award Plaintiff all reasonable compensatory datnages, including for lost

wages, lost goodtime, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

f.

Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

g.

Award Plaintiff reasonable attorneys' fees, expert fees and court costs under

42 U.S.C. §1988 for the prosecution of his 42 U.S.C. §1983 claims;

h.

Award Plaintiff reasonable attorneys' fees and court costs pursuant to federal

and state law;

1.

Award Plaintiff legal interest and costs; and

J·

Award such other and further relief as this Honorable Court deems right and

just.

VII. COUNT III
42 u.s.c. § 1983
EIGHTH AMENDMENT VIOLATION
DEFENDANTS RIDOC, WALL, BOYD, AUGER, KASZYK, JANKOWSKI,
FREEMAN, ISOM AND LAWSON

65. Plaintiff repeats and realleges each and every allegation contained in

paragraphs 1 through 64 as if incorporated and reiterated herein.

66. }~tall lliues relevant herein, each of the State Defendants was acting under

color of state law by exercising power made possible because the State Defendants were

clothed with the authority of state law.

67. The actions of State Defendants Freeman, Lawson, Isom, Jankowski, Wall,

Boyd, Auger and l(aszyk in booking, disciplining and locking Cook up in segregation on or

about March 4, 2008, May 30, 2008, September 11, 2008 and May 15, 2009 without

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substantial evidence violated Cook's Eighth A1nendment rights and displayed both deliberate

indifference and a reckless disregard of Cook's constitutional rights.

68. The actions of State Defendants Freeman, Lawson, Isom, Jankowski, Wall,

Boyd, Auger and I<aszyk violated 42 U.S.C. §1983 by depriving Jason Cook of his rights

under the Eighth Amendment to the United States Constitution.

69. As a direct and proximate result of the actions by each of the Defendants,

Freeman, Lawson, Isom,Jankowski, Wall, Boyd, Auger and I<aszyk,Jason Cook lost his job,

his wages, goodtime and his liberty.

70. The multiple detentions of the Plaintiff were not brought in good faith, but

rather, were brought by the defendant Wall and those acting in concert with him in bad faith

to subject the Plaintiff to cruel, inhumane and unusual punishment.

71. The actions of the defendants in the Plaintiffs multiple detentions cause

Plaintiff to suffer irreparable harn1 because the defendants' cruel and unusual punishment

has penalized and threatened to penalize the Plaintiff when he is engaging in activities that

are protected by the First and Fourteenth Amendments to the United States Constitution.

72. Plaintiff has no adequate remedy at law to redress the irreparable injury

which defendants have caused and continue to cause him.

WI-IEREFORE, PlaintiffJason Cook prays that this llonorable Court:

a.

Declare the actions of the defendants to be unconstitutional and in

derogation of the rights of the Plaintiff to be free of cruel and unusual punishment as

guaranteed by the Eighth Amendment to the United States Constitution;

b.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees and agents from sending the Plaintiff to segregation

by the issuance of a permanent injunction;

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c.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from continuing to prosecute Plaintiff for those charges set forth herein by issuance of a

permanent injunction;

d.

Award Plaintiff all reasonable compensatory damages, including for lost

wages, lost goodtime, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

e.

Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

f.

Award Plaintiff reasonable attorneys' fees, expert fees and court costs under

42 U.S.C. §1988 for the prosecution of his 42 U.S.C. §1983 claims;

g.

Award Plaintiff reasonable attorneys' fees and court costs pursuant to federal

and state law;

h.

Award Plaintiff legal interest and costs; and

1.

A\vard such other and further relief as this Honorable Court deems right and

just.

VIII. COUNT IV 42 U.S.C. § 1983 SUPERVISORY LIABILITY ST.LA~TE DEFENDAJ.'-,JTS W.ALL, BOYD, AUGER Al'-,JD KASZYK

73. Plaintiff repeats and realleges each and every allegation contained in

paragraphs 1 through 72 as if incorporated and reiterated herein.

74. At all times relevant herein, each of the State Defendants was acting under

color of state law by exercising power made possible because the State Defendants were

clothed with the authority of state law.

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75. By reason of the foregoing, State Defendants Wall, Boyd, Auger and K.aszyk,

supervisory personnel of Defendant Correctional Officers Izzo, N akhlis, Meunier,

Jankowski, Freeman and Lawson, acted with reckless disregard and deliberate indifference in

the hiring, screening and training of Defendant Correctional Officers Izzo, N akhlis,
Meunier, Janko\:vski, Freeman and Lawson.

76. The failure of defendants Wall, Boyd, Auger and I<:.aszyk to provide adequate

training, education and discipline of defendants Izzo, Nakhlis, Meunier, Jankowski, Freeman

and Lawson has resulted in the denial of Plaintiffs rights, protected by the First, Fifth,

Eighth and Fourteenth Amendments to the United States Constitution.

77. As a direct and proximate result of the actions by each of the Defendants,

Wall, Boyd, Auger and K.aszyk,Jason Cook lost his job, his wages, goodtime and his liberty

in violation of 42 U.S.C. § 1983.

WHEREFORE, PlaintiffJason Cook prays that this Honorable Court:

a.

Award Plaintiff all reasonable compensatory damages, including for lost

wages, lost goodtime, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

b.

Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

c.

Award Plaintiff reasonable attorneys' fees, expert fees and court costs under

42 U.S.C. §1988 for the prosecution of his 42 U.S.C. §1983 claims;

d.

Award Plaintiff reasonable attorneys' fees and court costs pursuant to federal

and state law;

e.

Award Plaintiff legal interest and costs; and

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f.

Award such other and further relief as this _Honorable Court deems right and

just.

IX.COUNTV VIOLATIONS OF ARTICLE 1 SECTIONS 2 AND 21
OF THE RHODE ISLAND CONSTITUTION DEFENDANTS RIDOC, WALL, BOYD, AUGER, KASZYK, IZZO, NAKHLIS, MEUNIER, JANKOWSKI, ISOM. FREEMAN AND LAWSON

78. Plaintiff repeats and realleges each and every allegation contained 1n

paragraphs 1 through 77 as if incorporated and reiterated herein.

79. The actions of State Defendants Wall, Boyd, Auger, I<..aszyk, Meunier and

Izzo in retaliating against Cook for publicly criticizing policy changes at the Rhode Island

Department of Corrections by booking, disciplining and terminating his employment

without due process violated Cook's rights under Article 1, Sections 2 and 21 of the Rhode

Island Constitution.

80. The actions of State Defendants Lawson and Nakhlis in retaliating against

Cook for publicly criticizing policy changes at the Rhode Island Department of Corrections

by violently searching his cell and destroying his property violated Cook's rights under

Article 1, Section 21 of the Rhode Island Constitution.

81. The actions of State Defendants Lawson, Jankowski, Wall, Boyd, Auger and

I<:.aszyk in booking, disciplining and locking Cook up in segregation on or about l\1arch 4,

2008 in retaliation for Cook's public comments, his affiliation with the RI ACLU and for

Cook's posting of a notice on a bulletin board without due process violated Cook's rights

under Article 1, Sections 2 and 21 of the Rhode Island Constitution.

82. The actions of State Defendants Lawson, Auger, I<..aszyk, Wall and Boyd in

locking Cook up in segregation on or about May 30, 2008 without due process and in

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retaliation for his public comments and for writing a letter of protest to the Parole Board violated Cook's rights under Article 1, Sections 2 and 21 of the Rhode Island Constitution.
83. The actions of State Defendants Freeman and Lawson in strip searching Cook's person and searching his cell in retaliation for his public comments and to learn whether Cook had communicated with a Providence Journal reporter violated Cook's rights under Article 1, Section 21 of the Rhode Island Constitution..
84. The actions of State Defendants Lawson, Freeman, Auger, I<aszyk, Wall and Boyd in locking Cook up in segregation on or about September 11, 2008 without due process and in retaliation for Cook's public comments violated Cook's rights under Article 1, Sections 2 and 21 of the Rhode Island Constitution.
85. The actions of State Defendants Isom, Auger, I<aszyk, Wall and Boyd in locking Cook up in segregation on or about May 15, 2009 without due process and in retaliation for Cook's public comments, for his filing of grievances and for distributing his attorney's business card violated Cook's rights under A.rticle 1, Sections 2 and 21 of the Rhode Island Constitution.
86. As a direct and proximate result of the actions by each of the Defendants, Wall, Boyd, Auger, Izzo, Nakhlis, 1-1eunier,Jankowski, Freen1.an, Isom and Izzo,Jason Cook lost }-js job, his wages, goodtime and rjs liberty.
87. The detentions, prosecutions, searchings and multiple charges brought against the Plaintiff were not brought in good faith, but rather, were brought by the defendant Wall and those acting in concert with him in bad faith to harass the Plaintiff and interfere with his right to freedom of speech to speak out about conditions at the RIDOC in derogation of rights secured to the Plaintiff by Article 1, Section 21 of the Rhode Island Constitution.
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88. The defendant Wall's bad faith is made manifest not only be the repeated

detentions and multiple charges and actions taken against the Plaintiff, but also by

declarations of officers acting under his direction and control of their determination to

prevent the Plaintiff from expressing his opinions and disseminating information about his

cause in any way to members of the general public.

89. The actions of the defendants in the detentions, prosecutions, destruction of

property, unlawful searches, and charging the Plaintiff with multiple violations of RIDOC

rules, policies or regulations cause Plaintiff to suffer irreparable harm because the

defendants' conduct has penalized and threatened to penalize the Plaintiff when he is

engaging in activities that are protected by Article 1, Sections 2 and 21 of the Rhode Island

Constitution.

90. Plaintiff has no adequate remedy at law to redress the irreparable injury

which defendants have caused and continue to cause hitn.

WHEREFORE, PlaintiffJason Cook prays that this Honorable Court:

a.

Declare the actions of the defendants to be unconstitutional and in

derogation of the Plaintiffs rights under Article 1, Sections 2 and 21 of the Rhode Island

Constitution in that the defendants acted arbitrarily, capriciously and without permissible

guidelines thereby denying to Plaintiff the right to free speech and due process as guaranteed

by Article 1, Sections 2 and 21 of the Rhode Island Constitution;

b.

Declare that the administrative and penal actions under which defendants

have restricted Plaintiffs activities are violations of Plaintiffs rights to due process and free

speech as guaranteed to all Rhode Island citizens pursuant to Article 1, Sections 2 and 21 of

the Rhode Island Constitution;

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c.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees and agents from prohibiting or in any way interfering

with Plaintiff's right to due process and to free speech to newspapers, the public, the parole

board or his association with any organization such as the RI ACLU by the issuance of a

pennanent injunction;

d.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from bringing any further disciplinary actions against the Plaintiff as it pertains to speech by

the issuance of a permanent injunction;

e.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from continuing to prosecute Plaintiff for those charges set forth herein by issuance of a

permanent injunction;

f.

1\ward Plaintiff all reasonable compensatory damages, including for lost

wages, lost goodtll.ne, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

g.

Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

h.

Award Plaintiff reasonable attorneys' fees and court costs pursuant to state

law;

i.

Award Plaintiff legal interest and costs; and

J·
just.

Award such other and further relief as this Honorable Court deems right and

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X.COUNTVI INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DEFENDANTS RIDOC, WALL, BOYD, AUGER, KASZYK, IZZO, NAKHLIS, MEUNIER, JANKOWSKI, FREEMAN, ISOM AND LAWSON

91. Plaintiff repeats and realleges each and every allegation contained m

paragraphs 1 through 90 as if incorporated and reiterated herein.

92. The Defendants' conduct of detaining, prosecuting, strip-searching and

charging the Plaintiff in violation of his constitutional rights was intentional and/ or in

reckless disregard of the probability of causin.g Plaintiff emotional distress.

93. The Defendants' conduct was extreme and outrageous.

94. There is a causal connection between Defendants' conduct and the

emotional distress suffered by the Plaintiff.

95. As a direct and proximate result of the intentional infliction of emotional

distress by the Defendants, Plaintiff has suffered serious mental anguish.

96. The actions of the defendants in the detentions, prosecutions, destruction of

property, unlawful strip searches, and charging the Plaintiff with multiple violations of

RIDOC rules, policies or regulations cause Plaintiff to suffer irreparable harm.

97. Plaintiff has no adequate remedy at law to redress the irreparable injury

which defendants have caused and continue to cause him.

WI-IEREFORE, PlaintiffJason Cook prays that this Honorable Court:

a.

Award Plaintiff all reasonable co1npensatory damages, including for lost

wages, lost goodtime, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

b.

Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

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c.

Award Plaintiff reasonable attorneys' fees, expert fees and court costs under

42 U.S.C. §1988 for the prosecution of his 42 U.S.C. §1983 claims;

d.

Award Plaintiff reasonable attorneys' fees and court costs pursuant to federal

and state law;

e.

Award Plain_tiff legal interest and costs; and

f.

Award such other and further relief as this Honorable Court deems right and

just.

XI. COUNT VII WRIT OF HABEAS CORPUS

98. Plaintiff repeats and realleges each and eve1y allegation contained 111

paragraphs 1 through 97 as if incorporated and reiterated herein.

99. The actions of State Defendants Wall, Boyd, Auger, I<..aszyk, Izzo, Nakhlis,

~1eunier, Jankoswki, Freeman, Isom and Lawson in detaining, confining and segregating Mr.

Cook without substantial evidence and in retaliation of l\1r. Cook's exercise of his First

Amendment rights violated the Constitution and laws of the United States of America.

100. In challenging such detention, confinement and segregation, Mr. Cook has

exhausted all available remedies and such remedies are ineffective to protect the rights of Mr.

Cook.

101. As a direct and proximate result of the actions by each of the Defendants,

Wall, Boyd, Auger, Izzo, N akhlis, Meunier, Jankowski, Freeman, Isom and Izzo, Jason Cook

lost his job, his wages, goodtime and his liberty.

WHEREFORE, PlaintiffJason Cook prays that this I-Ionorable Court:

a.

Award Plaintiff all reasonable compensatory damages, including for lost

wages and lost goodtime, for each count alleged in the Complaint;

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b. just.

Award such other and further relief as this Honorable Court deems right and

PLAINTIFF DEMANDS A TRIAL BY JURY AND DESIGNATES AMATO A. DELUCA, ESQ. AS TRIAL COUNSEL

Dated: January 23, 2010

Respectfully submitted, Plaintiff, By his Attorney,
A ato A. eLuca (#0531) Miria eizenbaum (# 5182) Michael T. Eskey (#3035) I\1atthew T. J erzyk (#7945) RHODE ISLAND AFFILIATE, AMERICAN CIVIL LIBERTIES UNION DeLuca and Weizenbaum, Ltd. 199 N. Main St. Providence, RI 02903 (401) 453-1500 (401) 453-1501 Facsimile

VERIFICATION
I, Jason Cook, as a person with personal knowledge of the facts which form the basis of the above-captioned action, being duly sworn, hereby state under oath that I have read the foregoing Verified Complaint and can verify that the facts set forth therein are true and accurate to the best of my knowledge, except those statements made upon in.formation and belief, and as to such statements I believe them to be true.

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UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

JASON COOK v.
A.T. WALL, et al.

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C.A. No. 09-169S

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REPORT AND RECOMMENDATION Lincoln D. Almond, United States Magistrate Judge

Pending before me for a report and recommendation (28 U.S.C. § 636(b)(1)(B); LR Cv 72(a)) is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint. (Document No. 31). Plaintiff objects. (Document No. 33). A hearing was held on April 5, 2012. For the following reasons, I recommend that Defendants’ Motion to Dismiss be GRANTED in part and DENIED in part.
Facts In his Verified First Amended Complaint (Document No. 26), Plaintiff sues eleven officials, employees and correctional officers of the Rhode Island Department of Corrections (“RIDOC”) in both their individual and official capacities under 42 U.S.C. § 1983, and state constitutional and tort law. Plaintiff also sues the RIDOC itself. The essence of Plaintiff’s Amended Complaint is that Defendants engaged in a series of unconstitutional and unlawful acts in retaliation for Plaintiff’s public criticism of a new RIDOC policy and other subsequent protected activity. In particular, on October 22, 2007, an article was published in The Providence Journal entitled “ACI inmate protests new restrictions on

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publications.” (Document Nos. 26-1 at p. 2). In the article, Plaintiff was critical of a new RIDOC policy restricting inmate access to books and other publications ordered and paid for by friends and relatives, i.e., gift subscriptions. Id. The article indicates that the policy change “prompted a crusade” by Plaintiff and quotes the following from his letter to A.T. Wall: “Come on, these are books. If anything, you should be helping us to find new ways to get them and encouraging the inmate population to start reading more.” Id. In addition, the article reported that the policy change was challenged by the Rhode Island Affiliate of the American Civil Liberties Union (“RIACLU”). Id. at p. 3. On April 11, 2008, the new policy was rescinded by the RIDOC. (Document No. 26-2 at p. 12).
Shortly after the October 22, 2007 article, Plaintiff alleges that he was fired from his prison kitchen job by Defendant Izzo “under the pretext that [Plaintiff] was caught on a video camera stealing state property.” (Document No. 26, ¶ 19). He alleges that Defendant Meunier found him guilty on October 30, 2007 before viewing the video recording. Id. at ¶ 20. Plaintiff alleges that Defendant Meunier later told him on November 7, 2007 that he viewed the video tape, and it showed that Plaintiff had “done nothing wrong” but Plaintiff asserts that his attempts to appeal and obtain compensation for the resulting lost wages and good time were unsuccessful. Id., ¶¶ 20-23.
On February 20, 2008, the RIACLU wrote to the RIDOC regarding its concerns about the recently adopted policy barring “gift subscriptions” and advised that its Legal Committee has recommended a legal challenge to the policy. (Document No. 26-1 at p. 18). The letter was copied to Defendant Wall and Plaintiff. Id. at p. 19. Plaintiff alleges that, shortly thereafter
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during a module wide shakedown, Defendants Lawson and Nakhlis “violently direct[ed] and/or conduct[ed] a search of [Plaintiff’s] cell and destroy[ed] his personal property, including his food items.” (Document No. 26, ¶ 24). Plaintiff complained about the manner in which the search was conducted. Id., ¶ 25, Ex. 6. Plaintiff alleges that the RIDOC Chief Investigator told him “to inform other inmates in his module with similar complaints regarding the search to direct complaints to him.” Id., ¶ 26. Accordingly, Plaintiff further alleges that, on or about March 3, 2008, he posted “a notice on an inmate bulletin board informing other inmates that any complaints they might have regarding the violent search should be directed to the Investigator.” Id., ¶ 27.
On or about March 4, 2008, Plaintiff alleges that Defendant Lawson removed his posting and disciplined him for “engaging in or encouraging a group demonstration and/or activities.” Id., ¶ 28. Plaintiff contends that he was strip searched, taken to segregation and “booked,” i.e., charged, two days later on March 6, 2008. Id.
Subsequently, Plaintiff asserts that a disciplinary board hearing with Defendant Jankowski was repeatedly postponed on or about March 7, 2008, March 11, 2008 and March 14, 2008. Id., ¶ 29. Plaintiff states that he submitted appeals to both Defendant Boyd and Defendant Jankowski protesting his situation. Id. After two weeks of segregation, Plaintiff asserts that he finally was given a hearing, on or about March 18, 2008, where he was unable to present and/or question witnesses, and Defendant Jankowski failed to present any material evidence against him. Id. After Plaintiff was found guilty and sanctioned with thirty days in segregation, the loss of thirty days of good time and the recommendation to be downgraded to the more restrictive
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maximum security facility, Plaintiff contends that Defendant Jankowski turned off the tape recorder and said to him that “this is what happens when you get the ACLU involved in our business.” Id. Plaintiff alleges that he unsuccessfully appealed to Defendant Boyd. Id., ¶ 30.
In a letter dated April 7, 2008, the RIACLU wrote to Defendant Boyd and requested that all copies of recordings of Plaintiff’s disciplinary hearings be retained. Id., ¶ 31, Ex. 11. Shortly thereafter, in a memo dated April 11, 2008, the RIDOC rescinded the policy change that Plaintiff and the RIACLU had publicly criticized. Id.
On or about May 30, 2008, Plaintiff alleges that he was once again strip searched and thrown into segregation under the pretext that he wrote a threatening letter to the Parole Board. Id., ¶ 32, Ex. 12. A June 5, 2008 report from the Special Investigation Unit promised that a Classification Board will convene to address Cook’s status in segregation. Id. Plaintiff asserts that no Board was convened, and he stayed in segregation for eighteen days. Id. On or about June 17, 2008, Plaintiff sent a grievance to Defendant Boyd protesting his placement in segregation, and Boyd responded to Plaintiff with a memo stating that Plaintiff was put into segregation, for security reasons, pending an investigation. Id., ¶ 33, Ex. 13. On June 17, 2008, Plaintiff was released from segregation. Id.
On or about September 8, 2008, Plaintiff sent a letter to Director Wall protesting the lack of a response to his grievances. Id., ¶ 34, Ex. 14. Two days later, Plaintiff asserts that he was subjected to a strip search, and his cell was searched by Defendants Freeman and Lawson and his property destroyed. Id., ¶ 35. Plaintiff contends that they looked through his legal materials during the search and asked him if he had communicated further with any Providence Journal
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reporters. Id. Shortly thereafter, Plaintiff contends that he was again strip searched and thrown into segregation, where he stayed for four more days. Id. Plaintiff sent a letter and a grievance directly to Defendant Boyd, who he claims failed to respond. Id., Ex. 15.
On or about May 14, 2009, after this lawsuit was filed, Plaintiff alleges that Defendant Isom informed Plaintiff that she was moving him into a notorious and less safe cell block and said, “[g]rieve that motherf__er.” Id., ¶ 36. The next day, upon learning of complaints from Plaintiff about her actions, Defendant Isom caused Plaintiff to be sent to segregation for seven days on the allegation that he was distributing his attorney’s business card and thereby creating a disturbance. Id. While in segregation, Plaintiff lost wages. Id. Soon thereafter, Plaintiff asserts that the allegation that he created a disturbance was found to be “without merit.” Id., Ex. 16.
Dismissal Standard Under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff, see Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994); taking all well-pleaded allegations as true and giving the plaintiff the benefit of all reasonable inferences, see Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002); Carreiro v. Rhodes Gill & Co., 68 F.3d 1443, 1446 (1st Cir. 1995). If under any theory the allegations are sufficient to state a cause of action in accordance with the law, the motion to dismiss must be denied. Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994). While a plaintiff need not plead factual allegations in great detail, the allegations must be sufficiently precise to raise a right to relief beyond mere speculation. See Bell Atl. Corp. v.
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Twombly, 550 U.S. 544 (2007) (abrogating the “no set of facts” rule of Conley v. Gibson, 355 U.S. 41, 44-45 (1957)). “The complaint must allege ‘a plausible entitlement to relief’ in order to survive a motion to dismiss.” Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008) (quoting Twombly, 550 U.S. at 559). See also Ashcroft v. Iqbal, 556 U.S. 662, 679 (“[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief”). The Court of Appeals has cautioned that the “plausibility” requirement is not akin to a “standard of likely success on the merits,” but instead, “the standard is plausibility assuming the pleaded facts to be true and read in a plaintiff’s favor.” Sepulveda-Villarini v. Dep’t of Educ. of Puerto Rico, 628 F.3d 25, 30 (1st Cir. 2010).
Discussion A. First Amendment Retaliation In Count I, Plaintiff alleges that Defendants violated his First Amendment rights1 by retaliating against him in various ways for “publicly criticizing policy changes at the [RIDOC],” his “affiliation with the RI ACLU,” for “posting [ ] a notice on a bulletin board,” for “writing a letter of protest to the Parole Board,” for “his filing of grievances,” and for “distributing his attorney’s business card.” (Document No. 26, ¶¶ 40-49). However, in his brief, Plaintiff describes his constitutionally protected conduct as “three-fold”: (1) his public statements reported in The Providence Journal regarding the policy change on books and other publications; (2) the bulletin board posting about grievances regarding cell searches; and (3) filing this lawsuit.
1 In Count V, Plaintiff also alleges that this alleged retaliation violated his free speech rights under Article 1, § 21 of the Rhode Island Constitution.
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(Document No. 33 at p. 14). Defendants read Count I a bit more narrowly and contend that Plaintiff only claims constitutional protection for two separate acts: “the story in the Providence Journal concerning his objection to a mail policy; and his posting on the bulletin board encouraging other inmates to file complaints.” (Document No. 31 at p. 8). Defendants then argue, relying solely upon Cossette v. Poulin, 573 F. Supp. 2d 456 (D.N.H. 2008), that inmates do not enjoy the same scope of First Amendment rights as the general public and that Plaintiff’s retaliation claim should be dismissed because he “did not engage in constitutionally protected behavior in the first instance.” Id. at pp. 8-9. While Defendants are generally correct as to the more limited scope of inmate rights, Defendant’s primary argument on the second point is easily dispatched.
In Cossette v. Poulin, supra, an inmate brought a First Amendment retaliation claim against prison officials alleging that he was removed from a prison job in the law library in retribution for giving a written statement to another inmate in support of the other inmate’s planned lawsuit against the prison librarian for overcharging him for photocopies. “To prevail on a retaliation claim, an inmate must establish ‘(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, 573 F. Supp. 2d at 459 (quoting Davis v. Goord, 320 F.3d 346, 352 (2nd Cir. 2003)). The Court in Cossette held that the statement in question dealt with a matter of purely individual economic importance and not a matter of public concern related to broader prison policies. Id. at 461, 464. Thus, it concluded that the inmate was not engaged in activity protected by the First Amendment
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and granted summary judgment in favor of the prison officials. Id. at 465. See also Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011) (holding that in order to survive summary judgment on a retaliation claim, a prisoner “must make out a prima facie case by adducing facts sufficient to show that he engaged in a protected activity”).
Here, Defendants are attacking Count I under Fed. R. Civ. P. 12(b)(6) and not under Fed. R. Civ. P. 56 as did the defendants in the Cossette case. Thus, the Court must accept Plaintiff’s well-plead allegations as true, and there is no evidentiary record at this stage upon which to assess the particular content, form and context of Plaintiff’s alleged protected speech. See Farhat v. Jopke, 370 F.3d 580, 590 (6th Cir. 2004) (describing the protected speech question as “highly fact-specific”). For instance, in this case, the exact content of the bulletin board posting is not quoted in the Complaint, and a copy is not attached as an exhibit to the Complaint. Plaintiff describes it as a notice “informing other inmates that any complaints they might have regarding the violent search should be directed to the Investigator” and that he did so because he was told by the Investigator to “inform other inmates in his module with similar complaints regarding the search to direct complaints to him.” (Document No. 26, ¶¶ 26-27). Despite these clear allegations which must be accepted as true at this stage, Defendants describe Plaintiff’s allegations as related to a posting “encouraging other inmates to file complaints.” (Document No. 31 at p. 8). Obviously, there is a factual distinction between the informational posting described in the Complaint and the encouraging posting described in Defendants’ brief.
Unlike the speech at issue in Cossette, the speech here was not solely concerning a personal matter of purely individual interest. Rather, Plaintiff alleges that he publicly criticized
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a new prison policy applicable to inmates generally, informed other inmates where to direct complaints about a module-wide search, and filed a civil rights lawsuit seeking redress for alleged retaliation at the hands of prison officials. Plaintiff’s allegations are sufficient at this stage to state a claim that he engaged in constitutionally protected behavior. See Pearson v. Welborn, 471 F.3d 732, 740 (7th Cir. 2006) (holding that statements by an inmate designed to urge a change in prison policy are deserving of First Amendment protection); Hannon, 645 F.3d at pp. 48-49 (holding that an inmate, in filing his own grievances and legal actions, “plainly engaged in protected activity” but recognizing that other activities, “such as organizing...fellow inmates and providing legal assistance to them,” is accorded lesser protection); and Montoya v. Bd. of Cnty. Comm’rs, Chaffee Cnty., 506 F. Supp. 2d 434, 447 (D. Colo. 2007) (undisputed that an inmate engaged in constitutionally-protected activity when he spoke to press about a taser incident). Thus, I recommend that Defendants’ Motion to Dismiss Counts I and V (as it relates to Article 1, § 21 of the R.I. Constitution) be DENIED.
B. Due Process Claims In Count II, Plaintiff alleges that the actions of Defendants (excepting Defendant Nakhlis) violated his rights under the “Fifth and Fourteenth Amendment...in that the defendants acted arbitrarily, capriciously and without permissible guidelines thereby denying to Plaintiff the right to procedural and substantive due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.” (Document No. 26 at p. 19). In particular, Plaintiff alleges that his due process rights were violated in connection with the loss of his prison job, and by being placed in disciplinary segregation “without substantial evidence” on or about
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March 4, 2008, May 30, 2008, September 11, 2008 and May 15, 2009. Id. at pp. 17-18. He also claims that the “detentions, prosecutions, searchings [sic] and multiple charges brought against the Plaintiff were not brought in good faith, but rather, were brought by the Defendant Wall and those acting in concert with him in bad faith to harass the Plaintiff and interfere with his right to due process.” Id. at p. 18.
Defendants move to dismiss this Count arguing that the deprivations he alleges, such as loss of a kitchen job and disciplinary segregations of less than thirty days, “do not rise to the level afforded constitutional protection.” (Document No. 31 at p. 11). To state a due process violation, an inmate must demonstrate a deprivation of a life, liberty or property interest. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The Supreme Court has made clear that the liberty interests of prison inmates are “generally limited to freedom from restraint” imposing “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In Sandin, the Supreme Court explained that “[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken ‘within the sentence imposed’” and held that a prisoner’s punishment of thirty days in disciplinary segregation “did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.” Id. at 480, 486.
Plaintiff does not directly counter Defendants’ argument that the deprivations he alleges do not rise to the level afforded constitutional due process protection and thus this argument is unopposed. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“Judges are not expected to be mindreaders. Consequently, a litigant has an obligation to spell out its arguments
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squarely and distinctly, or else forever hold its peace.”). Rather, Plaintiff contends that his alleged deprivations are “certainly actionable within the context of a retaliation claim.” (Document No. 33 at p. 21).2 Plaintiff asserts that “the Courts have been clear that actions, which standing alone do not violate the constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.” (Document No. 33 at p. 21 citing Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999); and L’Heureux v. Whitman, 1997 U.S. App. LEXIS 27942 (1st Cir. 1997)). As stated below, Count I states a claim that Plaintiff was the subject of retaliation for exercising his First Amendment rights. Thus, since Plaintiff makes clear in his brief that Count II is also a retaliation claim, it is redundant of Count I.
Further, in the portion of his brief addressing Count II, Plaintiff asserts that “since the loss of [his] job, wages, good time, property and liberty are properly construed within a First Amendment retaliation claim, [his] claims [in Count II] are actionable.” (Document No. 33 at p. 22) (emphasis added). However, this statement underscores that Plaintiff is not actually asserting any independent due process claims, and Count II is a flawed attempt to dress his First
2 In defending Count II, Plaintiff also references the so-called Morris Rules. The Morris Rules are procedures governing internal disciplinary and classification matters at the ACI. See Doctor v. Wall, 143 F. Supp. 2d 203, 206-208 (D.R.I. 2001). In particular, Plaintiff argues that, “since [he] has alleged a sufficient federal constitutional violation with his retaliation claim, [his] allegations of violations of the Morris Rules are properly before this Court.” (Document No. 33 at p. 24). The flaw in Plaintiff’s argument is that, while the Morris Rules are mentioned once in Count II at paragraph 55, Plaintiff never actually alleges any violation of the Morris Rules as part of his substantive claim in Count II. Count II is captioned as a claim under 42 U.S.C. § 1983 for the violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and alleges that Defendants’ conduct was a violation of Plaintiff’s “due process rights and displayed both deliberate indifference and a reckless disregard of [Plaintiff’s] constitutional rights.” (Document No. 26 at p. 17).
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Amendment retaliation claim in Due Process clothing.3 Thus, I recommend that Defendants’ Motion to Dismiss Counts II and V (as it relates to Article 1, § 2 of the R.I. Constitution) be GRANTED.
C. Eighth Amendment In Count III, Plaintiff alleges that the actions of Defendants (excepting Defendants Izzo, Nakhlis and Meunier) in booking, disciplining and placing him in segregation on four occasions without substantial evidence violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Defendants assert that Plaintiff has failed to state a viable Eighth Amendment claim. Plaintiff contends that his allegations of “repeated strip searches of his body” and a violent cell search within the context of retaliation state a claim under the Eighth Amendment. (Document No. 33 at p. 27). However, Count III does not refer to the strip searches or the cell search and is based solely on his allegations that he was subject to multiple disciplinary detentions without substantial evidence in violation of “[his] Eighth Amendment rights and [that Defendants] displayed both deliberate indifference and a reckless disregard of [his] constitutional rights.” (Document No. 26 at pp. 20-21). Count III also alleges that such actions deprived Plaintiff of his prison job, wages, good-time and liberty, and caused him to suffer “irreparable harm because the defendants’ cruel and unusual punishment has penalized and threatened to
3 In his brief, Plaintiff emphasizes that “[a]t the heart of [his] complaint is the assertion that he was unconstitutionally deprived of his First Amendment rights when defendants engaged in retaliatory conduct as a result of his” allegedly constitutionally protected activity. (Document No. 33 at p. 12). His retaliation claim is plainly stated in Count I, and it becomes more complicated, rather than stronger, when Plaintiff tries to shoe horn it into other provisions of the Constitution.
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penalize the Plaintiff when he is engaging in activities that are protected by the First and Fourteenth Amendments to the United States Constitution.” Id.
“Generally speaking, ‘[a]fter incarceration, only the unnecessary and wanton infliction of pain...constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Skinner v. Cunningham, 430 F.3d 483, 488 (1st Cir. 2005) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). “The critical question in such a case is whether the force was applied ‘maliciously and sadistically for the very purpose of causing harm’...rather than ‘in a good-faith effort to maintain or restore discipline.’” Id. (quoting Whitley, 475 U.S. at 320-321 and Hudson v. McMillian, 503 U.S. 1, 7 (1992)). Here, Plaintiff does not allege any physical injury in Count III. He seeks damages for “lost wages, lost goodtime, mental anguish and emotional distress” and an injunction restraining Defendants from sending him to segregation and continuing to prosecute him on baseless charges. (Document No. 26 at pp. 21-22). Further, contrary to Plaintiff’s brief, he does not specifically allege in Count III that his Eighth Amendment claim is based upon repeated strip searches or a violent cell search. Plaintiff has not alleged sufficient facts of “wanton infliction of pain” in Count III to state a plausible Eighth Amendment claim. A reasonable reading of Count III is that it is, yet again, a flawed attempt by Plaintiff to dress his First Amendment retaliation claim in Eighth Amendment clothing. Accordingly, I recommend that Defendants’ Motion to Dismiss Count III be GRANTED.
D. Supervisory Liability In Count IV, Plaintiff alleges that Defendants Wall, Boyd, Auger and Kaszyk, as RIDOC Supervisors, acted with reckless disregard and deliberate indifference in the hiring, screening and
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training of Defendant Correctional Officers Izzo, Nakhlis, Meunier, Jankowski, Freeman and Lawson, and that their failure to provide adequate training, education and discipline has resulted in the denial of his constitutional rights. Defendants move to dismiss, arguing that there is no supervisory or respondeat superior liability under 42 U.S.C. § 1983 and that Plaintiff has not alleged sufficient facts to state a claim that there is a causal link between the alleged acts or omissions of the Supervisory Defendants and the alleged misconduct of their subordinates. Plaintiff counters that he is not making a respondeat superior claim and that he alleges “sufficient factual matter that is plausible on its face that the supervisory defendants had an affirmative role in the retaliation against [him].” (Document No. 33 at p. 28).
As Plaintiff concedes, “a defendant supervisor cannot be held liable for the constitutional violations of a subordinate merely by virtue of the defendant’s status as supervisor.” Feliciano v. DuBois, 846 F. Supp. 1033, 1045 (D. Mass. 1994) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)). The supervisor “must be shown to have been in some manner personally involved in the alleged deprivation of rights.” Id. “It must be shown that the supervisor’s conduct or inaction amounted to a reckless or callous indifference to the constitutional rights of others.” Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989).
Here, in Count IV, Plaintiff alleges in conclusory fashion that the failure of the Supervisory Defendants to adequately screen, train and discipline the subordinate Defendants resulted in the denial of his constitutional rights. However, Plaintiff also directly sues each of the Supervisory Defendants (Director Wall, Warden Boyd and Deputy Wardens Auger and Kaszyk) in his substantive counts alleging their direct involvement in his various constitutional
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and tort claims. Thus, Count IV is duplicative and unnecessary. In addition, even if not duplicative, Plaintiff’s independent allegations of supervisory liability in Count IV are conclusory and not supported by any well-pleaded factual allegations. Without any factual support, Plaintiff alleges that the Supervisory Defendants failed to adequately screen, train and discipline the six subordinate Defendants and that such failure resulted in the constitutional violations he alleges. These are the kind of “conclusory allegations” and “threadbare recitals” that the Supreme Court instructed do not “unlock the doors of discovery.”4 See Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009). Accordingly, I recommend that Defendants’ Motion to Dismiss Count IV be GRANTED.
E. Habeas Corpus In Count VII (captioned Writ of Habeas Corpus), Plaintiff alleges that Defendants violated the Constitution and laws of the United States of America by detaining, confining and segregating him without substantial evidence and in retaliation for exercising his First Amendment rights. Plaintiff’s Amended Complaint does not cite the statutory or other legal basis for his habeas corpus claim. In his brief, Plaintiff cites DeWitt v. Wall, 121 Fed. App. 398, 399 (1st Cir. 2004), for the proposition that he can only obtain restoration of good-time credits in a habeas action. However, Plaintiff’s counsel conceded at the hearing that Plaintiff had completed the term of incarceration at issue in this case and had been released from custody.5
4 This caution is particularly appropriate here as discovery regarding Plaintiff’s conclusory claims in Count IV would go well beyond the facts surrounding his alleged protected activity and the alleged retaliatory acts but would potentially open the door to full-blown discovery of the RIDOC’s hiring, training, supervisory and disciplinary practices.
5 Plaintiff has apparently returned to prison due to subsequent criminal charges. See State v. Cook, P2-20113439 ADV and P2-2012-0214A.
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Thus, Plaintiff’s claim to restore good-time credits and adjust his release date is moot, and Plaintiff states no viable claim cognizable under 28 U.S.C. § 2254 that he is presently in state custody in violation of the Constitution. See Simon v. United States, 70 F.3d 1252, 1995 WL 709643 at *1 (1st Cir. 1995) (claim for restoration of good-time credits was mooted by petitioner’s release from custody); and Taylor v. Collins, 464 F. Supp. 2d 86, 88 (D.R.I. 2006) (same). Further, it makes no sense that a released inmate could “bank” restored good-time credits to use in a future incarceration since the award of good-time is discretionary and dependent on good behavior (R.I. Gen. Laws § 42-56-24), and Plaintiff has shown no legal basis for such an award. See Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987) (habeas petition seeking restoration of good-time credits was mooted by petitioner’s release from custody because good-time credits do not carry over to a subsequent incarceration). Accordingly, I recommend that Defendants’ Motion to Dismiss Count VII be GRANTED.
F. Exhaustion The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title...by a prisoner...until such administrative remedies as are available are exhausted.” “Section 1997e requires an inmate to exhaust all available administrative processes before filing a federal lawsuit relating to the conditions of his or her confinement, even if some or all of the relief the inmate seeks is not available through the administrative process.” Young v. Wall, C.A. No. 03-220S, 2006 WL 858085 at *2 (D.R.I. Feb. 27, 2006) (citing Booth v. Churner, 532 U.S. 731, 734 (2001)). “The PLRA’s exhaustion requirement applies to all inmate suits about prison life,
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whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002) “Nonexhaustion of administrative remedies is an affirmative defense, and the defendants bear the ultimate burden of pleading and proving non-exhaustion.” Maraglia v. Maloney, C.A. No. 200112144-RBC, 2006 WL 3741927 at *1 (D. Mass. Dec. 18, 2006) (citing Casanova v. Dubois, 304 F.3d 75, 77 n.3 (1st Cir. 2002)). “When the party moving for summary judgment bears the burden of proof on an issue, that party cannot prevail ‘unless the evidence that [it] provides on that issue is conclusive.’” Id. (quoting Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35 (1st Cir. 1998)).
In his Verified Amended Complaint, Plaintiff affirms that “[e]ach and all of [his] detailed grievances and appeals against the punitive measures of being placed in segregation, losing his job, losing his wages and losing his goodtime have been denied and his administrative remedies have been exhausted.” (Document No. 26 at p. 12). Additionally, in the Facts Section of his Verified Amended Complaint, Plaintiff details his grievance filing history and attaches relevant documents including grievance forms, letters of appeal and related documents. (Id. at pp. 8-12). Although Defendants concede that Plaintiff filed grievances in 2008 and 2009 related to events alleged in the Amended Complaint, they contend that many of the claims asserted by Plaintiff are not within the scope of his grievances, and thus are unexhausted and subject to dismissal. Viewing the evidence regarding exhaustion submitted by Defendants and that contained in Plaintiff’s Verified Amended Complaint and appended Exhibits in the light most favorable to Plaintiff as I must under Rule 56, Defendants have simply not made a conclusive showing of
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failure to exhaust at this stage which would allow the Court to conclude as a matter of law that they have met their burden of proof as to the affirmative defense of failure to exhaust. Thus, I recommend that Defendants’ alternative Motion for Summary Judgment on Exhaustion Grounds be DENIED without prejudice.
Conclusion For the foregoing reasons, I recommend that Defendants’ Motion to Dismiss (Document No. 31) be GRANTED in part and DENIED in part as provided herein. In particular, I recommend that Counts II, III, IV, V (as it relates to Article 1, § 2 of the R.I. Constitution) and VII of Plaintiff’s Amended Complaint be DISMISSED. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of the Court within fourteen (14) days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv 72. Failure to file specific objections in a timely manner constitutes waiver of the right to review by the District Court and the right to appeal the District Court’s decision. See United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).
/s/ Lincoln D. Almond LINCOLN D. ALMOND United States Magistrate Judge September 17, 2012
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 Case 1:09-cv-00169-WES-LDA Document 1 Filed 04/09/09 Page 1 of 28 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

JASON COOK, Plaintiff,

v.

ASHBEL T. WALL, individually and in his official capacity as director of the Rhode Island Department of Corrections; STEPHEN BOYD, individually and in his official capacity as a warden at the Rhode Island Department of Corrections; MICHELE AUGER, individually and in her official capacity as a deputy warden at the Rhode Island Department of Corrections; KIRK KASZYI<.:, individually and in his official capacity as a deputy warden at the Rhode Island Department of Corrections; THOMAS IZZO, individually and in his official capacity as a correctional officer at the Rhode Island Department of Corrections; : JOSEPH JANKOWSKI, individually and in : his official capacity as a correctional officer at : the Rhode Island Department of Corrections; : "JOHN DOE" NAKHLIS, individually and : in his official capacity as a correctional officer : at the Rhode Island Department of Corrections; 'jOHN DOE" MEUNIER, individually and in his official capacity as a correctional officer at the Rhode Island Department of Corrections; 'jOHN DOE" FREEMAN, individually and in his official capacity as a correctional office± at the Rhode : Island Department of Corrections; "JOHN DOE" LAWSON, individually and in his official capacity as a correctional officer at the Rhode Island Department of Corrections; : RHODE ISLAND DEPARTMENT OF CORRECTIONS
Defendants.

C.A. No. 09-
09

169

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COMPLAINT FOR DECLARATORY JUDGMENT,
INJUNCTIVE RELIEF, AND DAMANGES

I. PRELIMINARY STATEMENT

This is an action for declaratory and mandatory injunctive relief and for

compensatory and punitive damages to redress deprivation, under color of law, of rights,

privileges and immunities secured to the Plaintiff, Jason Cook, by the First, Fifth, Eighth and

Fourteenth Amendments of the United States Constitution and by Article I, Sections 2 and

21 of the Rhode Island Constitution. In support of his Complaint against Defendants,

Plaintiff states as follows:

II. JURISDICTION

1. Jurisdiction of this Honorable Court is proper under 28 U.S.C. §§1331, 1343,

1367,2201,2202 and 42 U.S.C. §§1983, 1988.

2.

Venue is proper in this district pursuant to 28 U.S.C. §1391(b)(2) in that a

substantial part of the events or omissions giving rise to this claim occurred within the

judicial district of Rhode Island.

III. PARTIES

3.

Plaintiff Jason Cook ("Cook") is now and at all times pertinent hereto has

been a resident and citizen of the State of Rhode Island and of the United States. Cook is

now and at all times pertinent hereto has been incarcerated at the John J. Moran facility at

the Rhode Island Department of Corrections since January 2006.

4.

Defendant Ashbel T. Wall ("Wall") is a citizen and resident of the State of

Rhode Island and of the United States. Wall, who is sued herein individually and in his

official capacity, is now and at all times pertinent hereto has been the Director of the Rhode

Island Department of Corrections where Plaintiff Cook has been detained. As Director,

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Wall is statutorily responsible for the management, administration and supervision of the

Rhode Island prison system, pursuant to R.I. Gen. Laws§ 42-56-10 et. seq. As such, he is the

supervising authority and commanding officer of the Defendant Correctional Officers Izzo,

Nakhlis, Meunier, Jankowski, Freeman and Lawson and was responsible for the training and

conduct of said Defendants. Wall was also responsible by law for enforcing the regulations

of the Rhode Island Department of Corrections and for insuring that correctional officers

obey the laws of the State of Rhode Island and of the United States. Wall had actual

knowledge of violations of Mr. Cook's constitutional rights and knew of the practices that

led to them. He did not act to stop or curb them. He created, maintained, and implemented

policies or customs allowing or encouraging these unlawful acts.

5.

Defendant Stephen Boyd ("Boyd") , upon information and belief, is a citizen

and resident of the State of Rhode Island and of the United States. Boyd, who is sued herein

individually and in his official capacity, is now and at all times pertinent hereto has been the

Warden of a medium security facility at the Rhode Island Department of Corrections where

Plaintiff Cook has been detained. As Warden, Boyd is statutorily responsible for the

management, administration and supervision of the medium security facility which has

housed Plaintiff Cook pursuant to R.I. Gen. Laws § 42-56-1 et. seq. As such, he is the

supervising authority and commanding officer of the Defendant Correctional Officers Izzo,

Nakhlis, Meunier, Jankowski, Freeman and Lawson and was responsible for the training and

conduct of said Defendants. Boyd was also responsible by law for enforcing the regulations

of the Rhode Island Department of Corrections and for insuring that correctional officers

obey the laws of the State of Rhode Island and of the United States. He had actual

knowledge of violations of Mr. Cook's constitutional rights and knew of the practices that

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led to them. He did not act to stop or curb them. He created, maintained, and implemented

policies or customs allowing or encouraging these unlawful acts.

6.

Defendant Michele Auger ("Auger"), upon information and belief, is a

citizen and resident of the State of Rhode Island and of the United States. Auger, who is

sued herein individually and in her official capacity, is now and at all times pertinent hereto

has been the Deputy Warden of a medium security facility at the Rhode Island Department

of Corrections where Plaintiff Cook has been detained. As Deputy Warden, Auger is

statutorily responsible for the management, administration and supervision of the medium

security facility which has housed Plaintiff Cook. As such, she is a supervising authority and

commanding officer of the Defendant Correctional Officers Izzo, Nakhlis, Meunier,

Jankowski, Freeman and Lawson and was responsible for the training and conduct of said

Defendants. Auger was also responsible by law for enforcing .the regulations of the Rhode

Island Department of Corrections and for insuring that correctional officers obey the laws

of the State of Rhode Island and of the United States. She had actual knowledge of

violations of Mr. Cook's constitutional rights and knew of the practices that led to them.

She did not act to stop or curb them. She created, maintained, and/or implemented policies

or customs allowing or encouraging these unlawful acts.

7.

Defendant: Kirk Kaszyk ("Kaszyk"), upon information and belief, is a citizen

and resident of the State of Rhode Island and of the United States. Kaszyk, who is sued

herein individually and in his official capacity, is now and at all times pertinent hereto has

been the Deputy Warden of a medium security facility at the Rhode Island Department of

Corrections where Plaintiff Cook has been detained. As Deputy Warden, Kaszyk is

statutorily responsible for the management, administration and supervision of the medium

security facility which has housed Plaintiff Cook. As such, he is a supervising authority and

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commanding officer of the Defendant Correctional Officers Izzo, Nakhlis, Meunier, Jankowski, Freeman and Lawson and was responsible for the training and conduct of said Defendants. Kaszyk was also responsible by law for enforcing the regulations of the Rhode Island Department of Corrections and for insuring that correctional officers obey the laws of the State of Rhode Island and of the United States. He had actual knowledge of violations of Mr. Cook's constitutional rights and knew of the practices that led to them. He did not act to stop or curb them. He created, maintained, and/or implemented policies or customs allowing or encouraging these unlawful acts.
·. 8. Defendant Joseph Jankowski (''Jankowski"), upon information and belief, is a citizen and resident of the State of Rhode Island. He is and was at all times relevant hereto a correctional officer in the Rhode Island Department of Corrections in the State of Rhode Island acting in such capacity as the agent, servant and employee of Defendant Department of Corrections. He is sued herein individually and in his official capacity. He violated Mr. Cook's constitutional rights, had actual knowledge of violations of Mr. Cook's constitutional rights and/or knew of the practices that led to them. He did not act to stop or curb them. He created, maintained, and/or implemented policies or customs allowing or encouraging these unlawful acts.
· 9. Defendant Thomas Izzo ("Izzo"), upon information and belief, is a citizen and resident of the State of Rhode Island. He is and was at all times relevant hereto a correctional officer in the Rhode Island Department of Corrections in the State of Rhode Island acting in such capacity as the agent, servant and employee of Defendant Department of Corrections. He is sued herein individually and in his official capacity. He violated Mr. Cook's constitutional rights, had actual knowledge of violations of Mr. Cook's constitutional rights and/or knew of the practices that led to them. He did not act to stop or curb them.
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He created, maintained, and/or implemented policies or customs allowing or encouraging these unlawful acts.
10. Defendant "John Doe" Nakhlis ("Nakhlis"), upon information and belief, is a citizen and resident of the State of Rhode Island. He is and was at all times relevant hereto a correctional officer in the Rhode Island Department of Corrections in the State of Rhode Island acting in such capacity as the agent, servant and employee of Defendant Department of Corrections. He is sued herein individually and in his official capacity. He violated Mr. Cook's constitutional rights, had actual knowledge of violations of Mr. Cook'-s constitutional rights and/or knew of the practices that led to them. He did not act to stop or curb them. He created, maintained, and/or implemented policies or customs allowing or encouraging these unlawful acts.
11. Defendant "John Doe" Meunier ("Meunier"), upon information and belief, is a citizen and resident of the State of Rhode Island. He is and was at all times relevant hereto a correctional officer in the Rhode Island Department of Corrections in the State of Rhode Island acting in such capacity as the agent, servant and employee of Defendant Department of Corrections. He is sued herein individually and in his official capacity. He violated Mr. Cook's constitutional rights, had actual knowledge of violations of Mr. Cook's constitutional rights and/or knew of the practices that led to them. He did not act to stop or curb them. He created, maintained, and/or implemented policies or customs allowing or encouraging these unlawful acts.
12. Defendant "John Doe" Freeman ("Freeman"), upon information and belief, is a citizen and resident of the State of Rhode Island. He is and was at all times relevant hereto a correctional officer in the Rhode Island Department of Corrections in the State of Rhode Island acting in such capacity as the agent, servant and employee of Defendant
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Department of Corrections. He is sued herein individually and in his official capacity. He violated Mr. Cook's constitutional rights, had actual knowledge of violations of Mr. Cook's constitutional rights and/or knew of the practices that led to them. He did not act to stop or curb them. He created, maintained, and/or implemented policies or customs allowing or encouraging these unlawful acts.
13. Defendant 'John Doe" Lawson ("Lawson"), upon information and belief, is a citizen and resident of the State of Rhode Island. He is and was at all times relevant hereto a correctional officer in the Rhode Island Department of Corrections in the State of Rhode Island acting in such capacity as the agent, servant and employee of Defendant Department of Corrections. He is sued herein individually and in his official capacity. He violated Mr. Cook's constitutional rights, had actual knowledge of violations of Mr. Cook's constitutional rights and/or knew of the practices that led to them. He did not act to stop or curb them. He created, maintained, and/or implemented policies or customs allowing or encouraging these unlawful acts.
14. Defendant Rhode Island Department of Corrections ("RIDOC") is a department established to provide for the custody, care, discipline, training, treatment, and study of persons committed to state correctional institutions pursuant to R.I. Gen. Laws § 42-56-1 et. seq. At all relevant times hereto, the RIDOC employed defendants Wall, Boyd, Auger, Kaszyk, Izzo, Nakhlis, Meunier, Jankowski, Freeman and Lawson. At all times mentioned herein, the RIDOC was duly organized and existing under the laws of the State of Rhode Island and of the United States.
15. At all times complained of herein, defendants Wall, Boyd, Auger, Kaszyk, Izzo, Nakhlis, Meunier, Jankowski, Freeman, Lawson and the RIDOC were acting under color of State law.
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16. Plaintiff is informed and believes and thereon alleges that at all times mentioned herein, the defendants were and are officials of the State of Rhode Island and/or correctional officers for the RIDOC. In doing the things herein described, each of the above named defendants acted within the course and scope of said employment, and each was the agent, servant and employee of each of their co-defendants. As such, the acts are imputed to the defendant RIDOC and defendants Wall, Boyd, Auger and Kaszyk. In addition, the individual defendants' conduct as further described in this Complaint, executes or implements an official policy of the RIDOC. Said policy can be found in regulations, laws, policy statements, rules or decisions officially adopted by state actors, or in a pattern or persistent practice sufficiently known to and approved by the RIDOC and defendants Wall, Boyd, Auger and Kaszyk to constitute a custom and policy.
IV. FACTS 17. On October 22, 2007, Jason Cook issues a public statement published in the Providence Journal criticizing a newly implemented Department of Corrections policy that limited publications available to inmates: DOC Policy 24.01-5. See Article attached as Exhibit 1. 18. Shortly thereafter, Cook is fired from his kitchen job by Correctional Officer Izzo under the pretext that Cook was caught on a video camera stealing state property. 19. On October 30, 2007, Lt. Meunier conducts a disciplinary hearing and finds Cook guilty, without viewing the videotape, but nonetheless tells Cook that he would review the video. The disciplinary report lists Cook's sanctions as "reprimand," not loss of employment. On November 7, 2007, Lt. Meunier tells Cook that the video tape showed that Cook had done nothing wrong. Immediately, Cook appeals Meunier's guilty finding the same day to Deputy Warden Auger. After waiting several weeks and not receiving a
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response from Auger, Cook resubmits his appeal on or about December 8, 2007. See Report and Letters attached as Exhibit 2.
20. On January 15, 2008, Cook writes a letter to Deputy Warden Auger and Warden Boyd asking about the status of his appeal. On January 25, 2008, Warden Boyd sends a memo to Cook stating that Cook was found not guilty and thus there was no basis for his appeal. See Letter and Memo attached as Exhibit 3.
21. On February 7, 2008, Cook sends a letter to Director Ashbel T. Wall asking for damages for his wrongful termination: lost wages and lost goodtime. On February 9, 2008, Director Wall denies Cook's request. See Letters attached as Exhibit 4.
22. On February 20, 2008, the Rhode Island affiliate of the American Civil Liberties Union intervenes on Cook's behalf in the dispute over inmate mail and writes the Department of Corrections to halt the new policy. See Letter attached as Exhibit 5.
23. Shordy thereafter, during a module wide shakedown, Correctional Officers Lawson and Nakhlis violendy direct and/or conduct a search of Cook's cell and destroy his personal property, including his food items. See Grievance attached as Exhibit 6.
24. Cook and his mother, Rita Connell, complain to the Department of Corrections Office of Inspections about the violent search and damaged property.
25. The Chief Investigator tells Cook to inform other inmates in his module with similar complaints regarding the search to direct complaints to him.
26. On or about March 3, 2008, in conformance with the Chief Investigator's stated desire, Cook posts a notice on an inmate bulletin board informing other inmates that any complaints they might have regarding the violent search should be directed to the Investigator.
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27. On or about March 4, 2008, Correctional Officer Lawson removes Cook's posting and disciplines Cook for "engaging in or encouraging a group demonstration and/or activities." Cook is strip searched and taken to segregation. Cook is booked two days later, on or about March 6, 2008. See Report attached as Exhibit 7.
28. Subsequently, a disciplinary board hearing with Lt. Jankowski is repeatedly postponed on or about March 7, 2008, March 11,2008 and March 14,2008. Cook writes appeals to both Warden Boyd and Lt. Jankowski protesting his condition. After two weeks of enduring segregation, Cook finally has a hearing, on or about March 18, 2008, where he is unable to present and/or question witnesses and Lt. Jankowski fails to present any material evidence against Cook. After Cook is found guilty and sanctioned with 30 days in segregation, the loss of 30 days of goodtime and the recommendation to be downgraded to the more restrictive maximum security facility, Lt. Jankowski turns off the tape recorder and says that 'this is what happens when you get the ACLU involved in our business.' See Reports attached as Exhibit 8. See Appeals attached as Exhibit 9.
29. Thereafter Cook appeals Jankowski's finding to Warden Boyd, who subsequently denies Cook's appeal on or about March 24,2008. See Warden's Review attached as Exhibit 10.
30. In a letter dated April 7, 2008, the RI ACLU writes to Warden Boyd and requests that all copies and/or recording of Cook's disciplinary hearings be retained. Shortly thereafter, in a memo dated April 11, 2008, the Department of Corrections rescinds the change in gift policy that Cook and the Rl ACLU publicly criticized. See Letter and Memo attached as Exhibit 11.
31. On or about May 30,2008, Cook is once again strip searched and thrown into segregation under the pretext that a letter he wrote to the Parole Board was threatening.
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A June 5, 2008 report from the Special Investigation Unit promises that a Classification Board will convene to address Cook's status in segregation. No Board is convened and Cook stays in segregation for 18 days. See Letter and Report attached as Exhibit 12.
32. On or about June 17, 2008, Cook sends a grievance to Warden Boyd protesting his placement in segregation and Boyd responds to Cook with a memo stating that Cook was put into segregation pending an investigation. On this day, Cook is released from segregation. See Memo and Grievances attached as Exhibit 13.
33. On or about September 8, 2008, Cook sends a letter to Director Wall protesting the lack of a response to his grievances. See Letter attached as Exhibit 14.
34. Two days later, Cook is subjected to a strip search and his cell is searched by Correctional Officers Freeman and Lawson and his property is destroyed. The Officers look through Cook's legal materials and Cook is asked by the Officers if he has communicated further with any Providence Journal reporters. Shortly thereafter, Cook is yet again strip searched and thrown into segregation, where he will ultimately stay for 4 more days. He sends a letter and a grievance directly to Warden Boyd, who fails to respond. See Grievance and Letter attached as Exhibit 15.
35. Each and all of Cook's detailed grievances and appeals against the punitive measures of being placed in segregation, losing his job, losing his wages and losing his goodtime have been denied and his administrative remedies have been exhausted.
V.COUNTI
42 u.s.c. $1983
FIRST AND FOURTEENTH AMENDMENT VIOLATIONS DEFENDANTS RIDOC, WALL. BOYD, AUGER. KASZYK.. IZZO. NA.KHLIS, MEUNIER, JANKOWSKI, FREEMAN AND LAWSON 36. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 35 as if incorporated and reiterated herein.
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37. At all times relevant herein, each of the State Defendants was acting under color of state law by exercising power made possible because the State Defendants were clothed with the authority of state law.
38. The actions of State Defendants Wall, Boyd, Auger, Kaszyk, Meunier and Izzo in retaliating against Cook for publicly criticizing policy changes at the Rhode Island Department of Corrections by booking, disciplining and terminating his employment violated Cook's First and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
39. The actions of State Defendants Lawson and Nakhlis in retaliating against Cook for publicly criticizing policy changes at the Rhode Island Department of Corrections by violently searching his cell and destroying his property violated Cook's First and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
40. The actions of State Defendants Lawson, Jankowski, Wall, Boyd, Auger and Kaszyk in booking, disciplining and locking Cook up in segregation on or about March 4, 2008 in retaliation for Cook's public comments, his affiliation with the RI ACLU and for Cook's posting of a notice on a bulletin board violated Cook's First and Fourteenth Amendment rights ·and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
41. The actions of State Defendants Lawson, Auger, Kaszyk, Wall and Boyd in locking Cook up in segregation on or about May 30, 2008 in retaliation for his public comments and for writing a letter of protest to the Parole Board violated First and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
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42. The actions of State Defendauts Freeman and Lawson in strip searching Cook's person and searching his cell in retaliation for his public comments and to learn whether Cook had communicated with a Providence Journal reporter violated Cook's First and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutioual rights.
43. The actions of State Defendants Lawson, Freeman, Auger, Kaszyk, Wall and Boyd in locking Cook up in segregation on or about September 11, 2008 in retaliatio11 for Cook's public comments violated Cook's First and Fourteenth Amendment rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
44. The actions of State Defendants Wall, Boyd, Auger, Izzo, Nakhlis, Meunier, Jankowski, Freeman and Izzo violated 42 U.S.C. §1983 by depriving Jason Cook of his rights under the First and Fourteenth Ameudments to the United States Constitution.
45. As a direct and proximate result of the actions by each of the Defendants, Wall, Boyd, Auger, Izzo, Nakhlis, Meunier, Jankowski, Freeman and Izzo,Jason Cook lost his job, his wages, goodtime and his liberty.
46. The detentions, prosecutions, searchings and multiple charges brought ·against the Plaintiff were not brought in good faith, but rather, were brought by the defendant Wall and those acting in concert with him in bad faith to harass the Plaintiff and interfere with his right to freedom of speech to speak out about conditions at the RIDOC in derogation of rights secured to the Plaintiff by the First and Fourteenth Amendments to the United States Constitution.
47. The defendant Wall's bad faith is made manifest not only by the repeated detentions and multiple charges and actions taken against the Plaintiff, but also by
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declarations of officers acting under his direction and control of their determination to

prevent the Plaintiff from express.ing his opinions and clissem.inating .information about his

cause .in any way to members of the general public.

48. The actions of the defendants .in the detentions, prosecutions, destruction of

property, unlawful searches, and charg.ing the Plaintiff with multiple violations of RIDOC

rules, policies or regulations cause Plaintiff to suffer irreparable harm because the

defendants' conduct has penalized and threatened to penalize the Pla.intiff when he is

engag.ing .in activities that are protected by the First and Fourteenth Amendments to the

United States Constitution.

49. Plaintiff has no adequate remedy at law to redress the irreparable .injury

which defendants have caused and continue to cause him.

WHEREFORE, PlaintiffJason Cook prays that this Honorable Court:

a.

Declare the actions of the defendants to be unconstitutional and .in

derogation of the First and Fourteenth Amendment rights of the Plaintiff .in that the

defendants acted arbitrarily, capriciously and without permissible guidelines thereby deny.ing

to Pla.intiff the right to free speech as guaranteed by the First and Fourteenth Amendments

to the United States Constitution;

b. Declare that the adm.inistrative and penal actions under which defendants

have restricted Pla.intiff's activities are violations of Pla.intiff's right to free speech as

guaranteed to all citizens pursuant to the First and Fourteenth Amendments to the United

States Constitution;

c.

Restra.in and enjo.in the defendants, each and every one of them, their

attorneys, officers, servants, employees and agents from prohibiting or .in any way interfering

with Pla.intiff's right to free speech to newspapers, the public, the parole board or his

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association with any organization such as the RI ACLU by the issuance of a permanent

injunction;

d. Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from bringing any further disciplinary actions against the Plaintiff as it pertains to speech by

the issuance of a permanent injunction;

e.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from continuing to prosecute Plaintiff for those charges set forth herein by issuance of a

permanent injunction;

f.

Award Plaintiff all reasonable compensatory damages, including for lost

wages, lost goodtime, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

g. Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

h. Award Plaintiff reasonable attorneys' fees, expert fees and court costs under

42 U.S.C. §1988 for the prosecution of his 42 U.S.C. §1983 claims;

i.

Award Plaintiff reasonable attorneys' fees and court costs pursuant to federal

and state law;

j.

Award Plaintifflegal interest and costs; and

k. Award such other and further relief as this Honorable Court deems right and

just.

VI. COUNT II
42 u.s.c. § 1983
FIFTH AND FOURTEENTH AMENDMENT VIOLATIONS
DEFENDANTS RIDOC. WALL. BOYD. AUGER. KASZYK, IZZO.

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MEUNIER. JANKOWSKI. FREEMAN AND LAWSON SO. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 49 as if incorporated and reiterated herein. 51. At all times relevant herein, each of the State Defendants was acting under color of state law by exercising power made possible because the State Defendants were clothed with the authority of state law. 52. The actions of State Defendants Wall, Boyd, Auger, Kaszyk, Meunier and Izzo in terminating the Plaintiff from his employment without the procedural due process guaranteed under the United States Constitution and the Morris rules violated Cook's due process rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights. 53. The actions of State Defendants Lawson, Jankowski, Auger, Kaszyk, Wall and Boyd in booking, disciplining and locking Cook up in segregation on or about March 4, 2008 without substantial evidence violated Cook's due process rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights. 54. The actions of State Defendants Lawson, Auger, Kaszyk, Wall and Boyd in locking Cook up in segregation on or about May 30, 2008 without substantial evidence violated Cook's due process rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights. 55. The actions of State Defendants Freeman, Lawson, Auger, I<.aszyk, Wall and Boyd in locking Cook up in segregation on or about September 11, 2008 without substantial evidence violated Cook's due process rights and displayed both deliberate indifference and a reckless disregard of Cook's constitutional rights.
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56. The actions of State Defendants WaJ.l, Boyd, Auger, Kaszyk, Izzo, Meunier,

Freeman, Jankowski and Lawson violated 42 U.S.C. §1983 by depriving Jason Cook of his

rights under the Fifth and Fourteenth Amendments to the United States Constitution.

57. As a direct and proximate result of the actions by each of the Defendants,

Wall, Boyd, Auger, Kaszyk, Izzo, Meunier, Freeman, Jankowski and Lawson, Jason Cook

lost his job, his wages, goodtime and his liberty.

58. The detentions, prosecutions, searchings and multiple charges brought

against the Plaintiff were not brought in good faith, but rather, were brought by the

defendant Wall and those acting in concert with him in bad faith to harass the Plaintiff and

interfere with his right to due process as secured to the Plaintiff by the Fifth and Fourteenth

Amendments to the United States Constitution.

59. The actions of the defendants in the detentions, prosecutions, destruction of

property, unlawful searches, and charging the Plaintiff with multiple violations of RIDOC

rules, policies or regulations cause Plaintiff to suffer irreparable harm because the

defendants' conduct has penalized and threatened to penalize the Plaintiff in violation of his

due process rights as protected by the Fifth and Fourteenth Amendments to the United

States Constitution.

60. Plaintiff has no adequate remedy at law to redress the irreparable injury

which defendants have caused and continue to cause him.

WHEREFORE, PlaintiffJason Cook prays that this Honorable Court:

a.

Declare the actions of the defendants to be unconstitutional and in

derogation of the Fifth and Fourteenth Amendment rights of the Plaintiff in that the

defendants acted arbitrarily, capriciously and without permissible guidelines thereby denying

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to Plaintiff the right to procedural and substantive due process as guaranteed by the Fifth

and Fourteenth Amendments to the United States Constitution;

b. Declare that the administrative and penal actions under which defendants

have restricted Plaintiffs liberties are violations of Plaintiffs procedural and substantive due

process rights as guaranteed to all citizens pursuant to the Fifth and Fourteenth

Amendments to the United States Constitution;

c.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees and agents from prohibiting or in any way interfering

with Plaintiffs procedural and substantive due proce.ss rights by the issuance of a permanent

injunction;

d.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from continuing to prosecute Plaintiff for those charges set forth herein by issuance of a

permanent injunction;

e.

Award Plaintiff all reasonable compensatory damages, including for lost

wages, lost goodtime, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

f.

Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

g.

Award Plaintiff reasonable attorneys' fees, expert fees and court costs under

42 U.S.C. §1988 for the prosecution of his 42 U.S.C. §1983 claims;

h. Award Plaintiff reasonable attorneys' fees and court costs pursuant to federal

and state law;

i.

Award Plaintiff legal interest and costs; and

18

Case 1:09-cv-00169-WES-LDA Document 1 Filed 04/09/09 Page 19 of 28 PageID #: 19

J·

Award such other and further relief as this Honorable Court deems right and

just.

VII. COUNT III
42 u.s.c. § 1983
EIGHTH AMENDMENT VIOLATION DEFENDANTS RIDOC, WALL. BOYD, AUGER, KAS2YK. JANKOWSKI~
FREEMAN AND LAWSON

61. Plaintiff repeats and realleges each and every allegation contained in

paragraphs 1 through 60 as if incorporated and reiterated herein.

62. At all times relevant herein, each of the State Defendants was acting under

color of state law by exercising power made possible because the State Defendants were

clothed with the authority of state law.

63. The actions of State Defendants Freeman, Lawson, Jankowski, Wall, Boyd, Auger and Kaszyk in booking, disciplining and locking Cook up in segregation on or about

March 4, 2008, May 30, 2008 and September 11, 2008 without substantial evidence violated Cook's Eighth Amendment rights and displayed both deliberate indifference and a reckless

disregard of Cook's constitutional rights. 64. The actions of State Defendants Freeman, Lawson, Jankowski, Wall, Boyd,

Auger and Kaszyk violated 42 U.S.C. §1983 by depriving Jason Cook of his rights under the

Eighth Amendment to the United States Constitution.

65. As a direct and proximate result of the actions by each of the Defendants,

Freeman, Lawson, Jankowski, Wall, Boyd, Auger and Kaszyk,Jason Cook lost his job, his

wages, goodtime and his liberty. 66. The multiple detentions of the Plaintiff were not brought in good faith, but
rather, were brought by the defendant Wall and those acting in concert with him in bad faith

to subject the Plaintiff to cruel, inhumane and unusual punishment.

19

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67. The actions of the defendants in the Plaintiffs multiple detentions cause

Plaintiff to suffer irreparable harm because the defendants' cruel and unusual punishment

has penalized and threatened to penalize the Plaintiff when he is engaging in activities that

are protected by the First and Fourteenth Amendments to the United States Constitution.

68. Plaintiff has no adequate remedy at law to redress the irreparable injury

which defendants have caused and continue to cause him.

WHEREFORE, PlaintiffJason Cook prays that this Honorable Court:

a.

Declare the actions of the defendants to be unconstitutional and in

derogation of the rights of the Plaintiff to be free of cruel and unusual punishment as

guaranteed by the Eighth Amendment to the United States Constitution;

b. Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees and agents from sending the Plaintiff to segregation

by the issuance of a permanent injunction;

c.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from continuing to prosecute Plaintiff for those charges set forth herein by issuance of a

permanent injunction;

d. Award Plaintiff all reasonable compensatory damages, including for lost

wages, lost goodtime, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

e.

Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

f.

Award Plaintiff reasonable attorneys' fees, expert fees and court costs under

42 U.S.C. §1988 for the prosecution of his 42 U.S.C. §1983 claims;

20

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g.

Award Plaintiff reasonable attorneys' fees and court costs pursuant to federal

and state law;

h. Award Plaintiff legal interest and costs; and

i.

Award such other and further relief as this Honorable Court deems right and

just.

VIII. COUNT IV 42 U.S.C. § 1983 SUPERVISORY LIABILITY STATE DEFENDANTS WALL. BOYD. AUGER AND KASZYK

69. Plaintiff repeats and realleges each and every allegation contaihed in

paragraphs 1 through 68 as if incorporated and reiterated herein.

70. At all times relevant herein, each of the State Defendants was acting under

color of state law by exercising power made possible because the State Defendants were

clothed with the authority of state law.

71. By reason of the foregoing, State Defendants Wall, Boyd, Auger and Kaszyk,

supervisory personnel of Defendant Correctional Officers Izzo, Nakhlis, Meunier,

Jankowski, Freeman and Lawson, acted with reckless disregard and deliberate indifference in

the hiring, screening and training of Defendant Correctional Officers Izzo, Nakhlis,

Meunier, Jankowski, Freeman and Lawson.

72. The failure of defendants Wall, Boyd, Auger and Kaszyk to provide adequate

training, education and discipline of defendants Izzo, Nakhlis, Meunier, Jankowski, Freeman

and Lawson has resulted in the denial of Plaintiffs rights, protected by the First, Fifth,

Eighth and Fourteenth Amendments to the United States Constitution.

73. As a direct and proximate result of the actions by each of the Defendants,

Wall, Boyd, Auger and Kaszyk,Jason Cook lost his job, his wages, goodtime and his liberty

in violation of 42 U.S.C. § 1983.

21

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WHEREFORE, PlaintiffJason Cook prays that this Honorable Court:

a.

Award Plaintiff all reasonable compensatory damages, including for lost

wages, lost goodtime, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

b. Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

c. Award Plaintiff reasonable attorneys' fees, expert fees and court costs under

42 U.S.C. §1988 for the prosecution of his 42 U.S.C. §1983 claims;

d. Award Plaintiff reasonable attorneys' fees and court costs pursuant to federal

and state law;

e. Award Plaintiff legal interest and costs; and

f.

Award such other and further relief as this Honorable Court deems right and

just.

IX.COUNTV VIOLATIONS OF ARTICLE 1 SECTIONS 2 AND 21
OF THE RHODE ISLAND CONSTITUTION DEFENDANTS RIDOC. WALL. BOYD. AUGER. KASZYK_. IZZO. NAKHLIS. MEUNIER. JANKOWSKI, FREEMAN AND LAWSON

74. Plaintiff repeats and realleges each and every allegation contained in

paragraphs 1 through 73 as if incorporated and reiterated herein.

75. The actions of State Defendants Wall, Boyd, Auger, Kaszyk, Meunier and

Izzo in retaliating against Cook for publicly criticizing policy changes at the Rhode Island

Department of Corrections by booking, disciplining and terminating his employment

without due process violated Cook's rights under Article 1, Sections 2 and 21 of the Rhode

Island Constitution.

22

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76. The actions of State Defendants Lawson and Nakhlis in retaliating against Cook for publicly criticizing policy changes at the Rhode Island Department of Corrections by violently searching his cell and destroying his property violated Cook's rights under Article 1, Section 21 of the Rhode Island Constitution.
77. The actions of State Defendants Lawson, Jankowski, Wall, Boyd, Auger and I<aszyk in booking, disciplining and locking Cook up in segregation on or about March 4, 2008 in retaliation for Cook's public comments, his affiliation with the RI ACLU and for Cook's posting of a notice on a bulletin board without due process violated Cook's rights under Article 1, Sections 2 and 21 of the Rhode Island Constitution.
78. The actions of State Defendants Lawson, Auger, Kaszyk, Wall and Boyd in locking Cook up in segregation on or about May 30,2008 without due process and in retaliation for his public comments and for writing a letter of protest to the Parole Board violated Cook's rights under Article 1, Sections 2 and 21 of the Rhode Island Constitution.
79. The actions of State Defendants Freeman and Lawson in strip searching Cook's person and searching his cell in retaliation for his public comments and to learn whether Cook had communicated with a Providence Journal reporter violated Cook's rights under Article 1, Section 21 of the Rhode Island Constitution..
80. The actions of State Defendants Lawson, Freeman, Auger, Kaszyk, Wall and Boyd in locking Cook up in segregation on or about September 11, 2008 without due process and in retaliation for Cook's public comments violated Cook's rights under Article 1, Sections 2 and 21 of the Rhode Island Constitution.
81. As a direct and proximate result of the actions by each of the Defendants, Wall, Boyd, Auger, Izzo, Nakhlis, Meunier, Jankowski, Freeman and Izzo,Jason Cook lost his job, his wages, goodtime and his liberty.
23

Case 1:09-cv-00169-WES-LDA Document 1 Filed 04/09/09 Page 24 of 28 PageID #: 24

82. The detentions, prosecutions, searchings and multiple charges brought

against the Plaintiff were not brought in good faith, but rather, were brought by the

defendant Wall and those acting in concert with him in bad faith to harass the Plaintiff and

interfere with his right to freedom of speech to speak out about conditions at the RIDOC in

derogation of rights secured to the Plaintiff by Article 1, Section 21 of the Rhode Island

Constitution.

83. The defendant Wall's bad faith is made manifest not only be the repeated

detentions and multiple charges and actions taken against the Plaintiff, but also by
to declarations of officers acting under his direction and control of their determination

prevent the Plaintiff from expressing his opinions and disseminating information about his

cause in any way to members of the general public.

84. The actions of the defendants in the detentions, prosecutions, destruction of

property, unlawful searches, and charging the Plaintiff with multiple violations of RIDOC

rules, policies or regulations cause Plaintiff to suffer irreparable harm because the

defendants' conduct has penalized and threatened to penalize the Plaintiff when he is

engaging in activities that are protected by Article 1, Sections 2 and 21 of the Rhode Island

Constitution.

85. Plaintiff has no adequate remedy at law to redress the irreparable injury

which defendants have caused and continue to cause him.

WHEREFORE, PlaintiffJason Cook prays that this Honorable Court:

a.

Declare the actions of the defendants to be unconstitutional and in

derogation of the Plaintiffs rights under Article 1, Sections 2 and 21 of the Rhode Island

Constitution in that the defendants acted arbitrarily, capriciously and without permissible

24

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guidelines thereby denying to Plaintiff the right to free speech and due process as guaranteed

by Article 1, Sections 2 and 21 of the Rhode Island Constitution;

b. Declare that the administrative and penal actions under which defendants

have restricted Plaintiffs activities are violations of Plaintiffs rights to due process and free

speech as guaranteed to all Rhode Island citizens pursuant to Article 1, Sections 2 and 21 of

the Rhode Island Constitution;

c.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees and agents from prohibiting or in any way interfering

with Plaintiffs right to due process and to free speech to newspapers, the public, the parole

board or his association with any organization such as the RI ACLU by the issuance of a

permanent injunction;

d. Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from bringing any further disciplinary actions against the Plaintiff as it pertains to speech by

the issuance of a permanent injunction;

e.

Restrain and enjoin the defendants, each and every one of them, their

attorneys, officers, servants, employees, agents and all person acting in concert with them

from continuing to prosecute Plaintiff for those charges set forth herein by issuance of a

permanent injunction;

f.

Award Plaintiff all reasonable compensatory damages, including for lost

wages, lost goodtime, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

g.

Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint;

25

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h. law;
i. l· just.

Award Plaintiff reasonable attorneys' fees and court costs pursuant to state
Award Plaintiff legal interest and costs; and Award such other and further relief as this Honorable Court deems right and

X. COUNT VI INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DEFENDANTS RIDOC. WALL. BOYD. AUGER. KASZYK. IZZO. NAKHLIS, MEUNIER, JANKOWSKI. FREEMAN AND LAWSON 86. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 85 as if incorporated and reiterated herein. 87. The Defendants' conduct of detaining, prosecuting, strip-searching and charging the Plaintiff in violation of his constitutional rights was intentional and/or in reckless disregard of the probability of causing Plaintiff emotional distress. 88. The Defendants' conduct was extreme and outrageous. 89. There is a causal connection between Defendants' conduct and the emotional distress suffered by the Plaintiff. 90. As a direct and proximate result of the intentional infliction of emotional distress by the Defendants, Plaintiff has suffered serious mental anguish. 91. The actions of the defendants in the detentions, prosecutions, destruction of property, unlawful strip searches, and charging the Plaintiff with multiple violations of RIDOC rules, policies or regulations cause Plaintiff to suffer irreparable harm. 92. Plaintiff has no adequate remedy at law to redress the irreparable injury which defendants have caused and continue to cause him. WHEREFORE, PlaintiffJason Cook prays that this Honorable Court:

26

Case 1:09-cv-00169-WES-LDA Document 1 Filed 04/09/09 Page 27 of 28 PageID #: 27

a.

Award Plaintiff all reasonable compensatory damages, including for lost

wages, lost goodtime, mental anguish and emotional distress, and any other compensatory

damages, for each count alleged in the Complaint;

b. Award Plaintiff punitive damages against all Defendants for each count

alleged in the Complaint; c. Award Plaintiff reasonable attorneys' fees, expert fees and court costs under

42 U.S.C. §1988 for the prosecution of his 42 U.S.C. §1983 claims;

d. Award Plaintiff reasonable attorneys' fees and court costs pursuant to federal

and state law;

e. Award Plaintiff legal interest and costs; and

f.

Award such other and further relief as this Honorable Court deems right and

just.

PLAINTIFF DEMANDS A TRIAL BY JURY AND DESIGNATES AMATO A. DELUCA; ESQ. AS TRIAL COUNSEL

27

Case 1:09-cv-00169-WES-LDA Document 1 Filed 04/09/09 Page 28 of 28 PageID #: 28
Respectfully submitted, Plaintiff, By his Attorney,
ct3~u~1)
Miriam Weizenbaum (#5182) Michael T. Eskey (#3035) Jennifer Azevedo (#6462) Matthew T. J erzyk (#7945) RHODE ISLAND AFFILIATE, AMERICAN CIVIL LIBERTIES UNION DeLuca and Weizenbaum, Ltd. 199 N. Main St. Providence,RI 02903 (401) 453-1500 (401) 453-1501 Facsimile
Dated: April 6th, 2009
VERIFICATION
I, Jason Cook, as a person with personal knowledge of the facts which form the basis of the above-captioned action, being duly sworn, hereby state under oath that I have read the foregoing Verified Complaint and can verify that the facts set forth therein are true and accurate to the best of my knowledge, except those statements made upon information and belief, and as to such statements I believe them to be true.

STATE OF RHODE ISLAND

COUNTY' OF PROVIDENCE

Subscribed

and

sworn

to

before

me

this

~ . ~

day

~()rd
of MMer.t;

2009.

My commission expires:
28

JENNIFER M. ST. CYR
' NOTARY PUBLIC
State ef Rhode lslal_ld My Commission Expires
July 23, 2009

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

______________________________

)

Jason Cook,

)

)

Plaintiff,

)

v.

)

)

A. T. Wall, et al.,

)

)

Defendants.

)

______________________________)

C.A. No. 09-169 S

ORDER

WILLIAM E. SMITH, United States District Judge.

Before the Court are Plaintiff’s and Defendants’

Objections (ECF Nos. 43 and 42, respectively) to Magistrate

Judge Lincoln D. Almond’s (“MJ Almond”) Report and

Recommendation (“R&R”), dated September 17, 2012. (ECF No.

40.) MJ Almond recommended that Defendants’ Motion to

Dismiss Plaintiff’s Amended Complaint (ECF No. 31) be

granted in part and denied in part. The Court held a hearing on both parties’ objections on January 28, 2013.1

After careful review, MJ Almond’s R&R is adopted regarding

Counts I, III, IV, and VII but rejected regarding Counts

II, V, and VI.

1 The Court’s review of such an objection is de novo. See Fed. R. Civ. P. 72(b)(3).

For the following reasons, Cook’s Due Process claim is entitled to proceed, but Cook’s Intentional Infliction of Emotional Distress claim must be dismissed. I. Due Process
First, the Court does not adopt MJ Almond’s recommendation to grant Defendants’ Motion to Dismiss Cook’s Due Process claim. Cook asserts that his liberty interest has been violated in a variety of ways: the Defendants terminated Cook from employment based on an allegation alone; the Defendants prohibited Cook from presenting evidence as well as calling or examining witnesses at the hearing regarding the employment termination; the Defendants failed to timely notify Cook that his appeal from the disciplinary board’s decision had been denied; and the Defendants placed Cook into segregation without any evidence or hearings four times, for more than fifty-two days total, including stints of thirty days and eighteen days. (See Am. Compl. ¶¶ 17-21, 28-31 (ECF No. 26).) While some of these allegations alone may be insufficient to violate Cook’s liberty interest, when taken in the aggregate, at the pleading stage, these allegations are sufficient to make out a claim of a violation of Cook’s liberty interest.
2

“A liberty interest may arise from the Constitution
itself . . . or it may arise from an expectation or
interest created by state laws or policies.” Wilkinson v.
Austin, 545 U.S. 209, 221-22 (2005). These state created
liberty interests
will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidence of prison life.2
Id. (quoting Sandin v. Conner, 515 U.S. 472, 483-84
(1995)).
The Supreme Court has also held that placing a
prisoner in segregated confinement for thirty days was not
considered “atypical” or a “significant hardship” to be
considered a violation of a protected liberty interest
under State law or the Due Process Clause of the
Constitution. See Sandin, 515 U.S. at 484. The Court
reasoned that the prisoner’s confinement “mirrored []
conditions imposed upon inmates in administrative
2 At oral arguments the Defendants referred to Almeida v. Wall, C.A. No. 08-184S, 2008 WL 5377924 (D.R.I. Dec. 23, 2008), which found that a petitioner did not have a liberty interest in his good time credit under R.I. Gen Laws § 4256-24 (1990 Reenactment). After further review, the state law, the liberty interest at issue, and the facts in Almeida are distinguishable from this case and thus, it does not prohibit Cook from bringing his Due Process claim. See id. at *1-3.
3

segregation and protective custody” and that the prisoner’s “confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction.” See id. at 486.
Nevertheless, here, at this stage of the case, Cook’s Amended Complaint alleges multiple facts that could lead the Court to find that Defendants have “impose[d] atypical and significant hardship” on Cook which would thus violate a state created and/or Due Process Clause liberty interest. See id. at 484. The allegations in Cook’s Amended Complaint appear to be more severe than the facts of Sandin, as Cook states he was placed in segregation for longer than thirty days without hearings or any evidence to warrant the segregation, was terminated from his employment without evidence, was prevented from producing any evidence at his termination hearing, and was improperly notified regarding the disciplinary board’s decision. See id. at 472; Am. Compl. ¶¶ 17-18, 20-21, 28-31. It is also worth mentioning that the prisoner in Sandin was sentenced to thirty years to life as a result of convictions for murder, kidnapping, robbery, and burglary and had been often placed in segregation prior to these incidents, unlike Cook, who was serving a seven year sentence for breaking and entering. Compare Sandin, 515 U.S. at 474-75. Therefore,
4

unlike in Sandin, Cook’s treatment may not “mirror[]
conditions imposed upon inmates in administrative
segregation and protective custody” and all of Defendants’
actions could rise to the level of violating Cook’s
protected liberty interest under state law — the Morris
Rules3 — and under the Due Process Clause of the
Constitution.4 See id. at 486.
II. Intentional Infliction of Emotional Distress
Second, Defendants correctly point out that MJ Almond
did not make a recommendation regarding the Intentional
3 Contrary to Judge Almond’s R&R, even though the Amended Complaint is not the most well pleaded complaint, it appears Cook does plead a Due Process claim for which relief can be granted as Cook asserts in his Amended Complaint that his due process rights were violated by the process and manner in which Defendants disciplined him, and he specifically mentions the Fourteenth Amendment and the Morris Rules under the Due Process Count of the Amended Complaint. (See Am. Compl. pp. 17-20.)
4 In Rhode Island, the state laws that may create the federal liberty interest here are the Morris Rules which “spell out privileges and restrictions for each classification, establish minimum conditions of confinement, and enumerate those inmate actions that constitute punishable conduct.” See Doctor v. Wall, 143 F. Supp. 2d 203, 206 (D.R.I 2001). Even though the Morris Rules are state law, jurisdiction in federal court is proper as Cook asserts that his due process rights were violated when Defendants violated a liberty interest created by the Constitution and the Morris Rules, not just the Morris Rules alone. See id.; Am. Compl. ¶ 55. Thus, because Cook is “mak[ing] an allegation of a federal constitutional violation and bring[ing] an action under 42 U.S.C. § 1983” the Court can hear this claim. See Doctor, 143 F. Supp. 2d at 205; Am. Compl. p. 17.
5

Infliction of Emotional Distress claim. Under Rhode Island law, liability is only imposed after four factors have been proven:
(1) the conduct must be intentional or in reckless disregard of the probability of causing emotional distress, (2) the conduct must be extreme and outrageous, (3) there must be a causal connection between the wrongful conduct and the emotional distress, and (4) the emotional distress in question must be severe. Norton v. McOsker, 407 F.3d 501, 510 (1st Cir. 2005). Furthermore, Rhode Island “requires that there be some medical proof establishing physical symptoms of distress.” Id. Cook’s Amended Complaint, however, fails to allege medical proof of physical symptoms of distress. Accordingly, Cook’s Intentional Infliction of Emotional Distress claim must be dismissed. III Conclusion Accordingly, Magistrate Judge Almond’s R&R is adopted in part and rejected in part. The Court accepts and adopts MJ Almond’s R&R in the following respects: first, the Court DENIES Defendants’ Motion to Dismiss regarding Counts I and V (as they relate to Article 1, Section 21 of the Rhode Island Constitution), the First Amendment retaliation claim, for the reasons laid out by MJ Almond; second, as neither party objected to MJ Almond’s R&R regarding Count III, the Eighth Amendment Violation claim, Count IV, the
6

supervisory liability claim, and Count VII, captioned as a Writ of Habeas Corpus claim, the Court GRANTS Defendants’ Motion to Dismiss on those counts; finally, the Court DENIES with prejudice Defendants’ Motion for Summary Judgment on Exhaustion Grounds, for the reasons laid out by MJ Almond. As discussed above, the Court does not adopt the R&R for the following two claims: (1) the Due Process claim and (2) the Intentional Infliction of Emotional Distress claim. Thus, the Court DENIES Defendants’ Motion to Dismiss regarding Counts II and V (as they relate to Article 1, Section 2 of the Rhode Island Constitution), the Due Process claim, and the Court GRANTS Defendants’ Motion to Dismiss Count VI, the Intentional Infliction of Emotional Distress claim.
IT IS SO ORDERED.
/s/ William E. Smith
William E. Smith United States District Judge Date: February 28, 2013
7