United States Court of Appeals 

For the First Circuit 

No. 13-2278

ROBERT GOGUEN, 

Plaintiff, Appellee, 

v. 

DAVID ALLEN, JESSICA ALMEIDA, DARLENE BUGBEE, JAMES FRENCH, 

EDDIE JACQUES, JENNIFER GILBLAIR, MARGARET KELLY, CRAIG MEUNIER, 

KEITH PLOURD, MICHAEL RIZZO, 

Defendants, Appellants, 

COREY SWOPE, SHAWN MAGUIRE, GARY CRAFTS, THERESA BROWN, 

JULIE HAYDEN, JEFFREY JACQUES, 

Defendants. 

___________________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. John A. Woodcock, Jr., U.S. District Judge] 

___________________ 

Before 

Lynch, Chief Judge, 

Ripple* and Selya, Circuit Judges. 

___________________ 

Peter T. Marchesi, with whom Cassandra S. Shaffer and 

Wheeler & Arey, P.A., were on brief, for appellants. 

Michael J. Waxman for appellee. 

                                                  * Of the Seventh Circuit, sitting by designation.
‐2‐

March 12, 2015 
‐3‐

RIPPLE, Circuit Judge. Robert Goguen is a former 

pretrial detainee at the Somerset County Jail (“SCJ”). He 

brought this action alleging that various correctional officers 

at SCJ violated his rights under the First, Eighth, and 

Fourteenth Amendments by inflicting punishment on him without 

due process of law and by retaliating against him for filing 

grievances against members of SCJ’s staff. The defendant 

officers and administrators moved for judgment on the pleadings, 

summary judgment on the merits, and also summary judgment on the 

basis of qualified immunity. The district court granted summary 

judgment to several defendants who had not participated 

personally in the alleged violations. With respect to the 

remaining defendants, the court concluded that there were 

genuine issues of material fact concerning the defendants’ 

actions and motivations that precluded summary judgment. These 

remaining defendants timely appealed. 

We conclude that the defendants’ appeal must be 

dismissed for want of appellate jurisdiction. The defendants’ 

arguments on appeal take issue with the district court’s factual 

assessments and do not present a pure issue of law for this 

court’s consideration. Consequently, following our holdings in 

Cady v. Walsh, 753 F.3d 348 (1st Cir. 2014), and Penn v. 
‐4‐

Escorsio, 764 F.3d 102 (1st Cir. 2014), we cannot entertain the 

defendants’ appeal. 

I. 

A.

Between March and December 2011, Mr. Goguen was 

detained at the SCJ awaiting his trial on pending charges in 

state and federal courts. From March 15, 2011, until June 23, 

2011, the SCJ housed Mr. Goguen in its E-pod, a general 

population area in which inmates are allowed some freedom of 

movement. In contrast, SCJ’s A-pod, which houses inmates in 

administrative segregation, inmates in disciplinary segregation, 

and inmates who are classified as maximum security, imposes 

significantly greater restrictions. Mr. Goguen’s allegations 

center on his repeated placement in A-pod, ostensibly for 

administrative segregation. We therefore discuss, in some 

detail, the conditions of confinement in A-pod. 

Inmates in administrative segregation endure a 

significantly restrictive environment. While in administrative 

segregation, inmates are allowed out of their cells for one hour 

per day, five days per week, for recreation. “Recreation” takes 

place in a caged area that is approximately five feet wide by 

ten feet long. Inmates in administrative segregation leave 
‐5‐

their cells to shower three times per week; each inmate 

generally is allowed ten to fifteen minutes to shower. Once a 

week, inmates in administrative segregation are allowed out of 

their cells to make a telephone call. 

According to the defendants, any inmate housed in Apod, whether placed there for administrative segregation, for 

disciplinary segregation, or because of their maximum-security 

classification, are strip searched every time they enter or 

leave their cells.   All cells in A-pod are searched at least once 

per day, compared to cells in E-pod, which are searched on a 

monthly basis. Additional cell searches also may be conducted 

when SCJ staff members receive information that an inmate 

possesses contraband. When a cell search is conducted, the 

inmate housed in that cell is strip searched prior to being 

removed from the cell. 

When an inmate is taken to administrative segregation, 

all of the inmate’s property is put into a bag and taken to the 

property room. If an inmate in administrative segregation 

requests his legal materials, arrangements are made to provide 

the legal materials to the inmate when the property officer is 

on duty. When an inmate is placed back in general population, 

the inmate’s property is returned by the property officer. 
‐6‐

Placement in administrative segregation is reviewed 

within seventy-two hours by the classification supervisor. SCJ 

policy also requires that, within the same time frame, an inmate 

be given notice of the reason for his placement in 

administrative segregation and of the date and time that the 

committee will hold a hearing to review the administrativesegregation placement. Another review of administrativesegregation status is done within seven days (every Friday) to 

determine if continued placement is needed; review can be 

performed by any day shift commander. 

1. June 23 Disciplinary Charges 

The incidents relevant to Mr. Goguen’s claims begin on 

June 23, 2011, when Officer Jennifer Gilblair searched 

Mr. Goguen’s cell in E-pod for an envelope. Officer Gilblair 

asked Officer Craig Meunier not to let Mr. Goguen upstairs while 

she was searching the cell. Mr. Goguen was allowed to watch the 

cell search from downstairs. Based on the configuration of the 

SCJ, however, the district court concluded that one actually 

cannot watch a cell search from downstairs. The defendants 

dispute whether the district court reasonably could have reached 

this conclusion based on the evidence before it. Officer 

Gilblair’s search uncovered commissary items including one 
‐7‐

plastic soap dish, one bar of soap, one plastic bowl, one whitecolored shower shaver, and one bottle of shampoo. It is 

undisputed that, due to a lack of funds, Mr. Goguen could not 

have purchased these items; consequently, Officer Gilblair wrote 

a disciplinary report and a notice of infraction for a violation 

of C–04 of the SCJ Inmate Discipline Policy, “Giving, Receiving, 

or Swapping.”1 Mr. Goguen maintains that there was no legitimate 

reason to search his cell for an envelope because legal 

envelopes are supplied for free by the commissary. 

According to Officer Meunier, Mr. Goguen responded to 

the search of his cell by arguing and swearing at him. Officer 

Meunier therefore wrote a disciplinary report concerning 

Mr. Goguen’s conduct, in which he charged Mr. Goguen with a 

violation of B–24, “Interfering,” and B–12, “[P]rovocation.”2 

Mr. Goguen denies that he argued with or swore at the officers 

involved in the search of his cell; instead, he maintains that 

Officer Gilblair yelled and cursed at him. Mr. Goguen contends 

that these charges were falsely brought by Officers Meunier and 

                                                 

1   See R. 56-11 (SCJ Policy-“Inmate Discipline”) at 72; R.45-18 

(SCJ Disciplinary Report dated 6/23/11) at 1. 

2 R.45-20 (SCJ Disciplinary Report dated 6/23/11) at 1. 

Although the disciplinary report identifies “Provocation” as a 

violation of policy “B-12,” “Provocation” actually corresponds 

to B-13. R.56-11 (SCJ Policy-“Inmate Discipline”) at 71. 
‐8‐

Gilblair. Notably, Mr. Goguen attributes Officer Gilblair’s 

actions to the fact that, just before the search, he had been a 

witness for another inmate and “wrote a report against Gilblair 

for her misconduct . . . or harassment.”3 Following this 

incident, Mr. Goguen was placed in administrative segregation in 

A-pod on order of then-Sergeant Keith Plourd.4

A non-defendant officer, Officer Ducharme, was 

assigned to investigate the giving-receiving-swapping charge and 

spoke to Mr. Goguen on the day of the incident. He informed 

Mr. Goguen of the alleged violation and asked for Mr. Goguen’s 

side of the story. Officer Ducharme provided Mr. Goguen a 

notice of infraction, which informed him of the charge. 

Mr. Goguen admitted that the items found in his cell were not 

issued to him, but claimed that they either were left in the 

cell, given to him by another inmate, or left behind in the 

shower; he claimed that he was unaware that he could not have 

them. 

                                                 

3 R.83 (Goguen Dep.) at 47. 

4 Sergeant Plourd now has been promoted to Lieutenant. However, 

we shall refer to him by his rank at the time the alleged 

actions took place. 

Mr. Goguen maintains that, as a result of the search conducted 

on June 23 and his subsequent transfer to A-pod, some of his 

legal papers went missing. He has not substantiated this 

allegation through any sworn statement. 
‐9‐

Officer James French was assigned to investigate the 

interfering-provocation charge. He supplied Mr. Goguen with a 

notice, informed Mr. Goguen of the charge, and asked for his 

side of the story. 

The standard notice informs inmates that they will 

receive an opportunity to respond or to explain the alleged 

violation to a disciplinary hearing officer within seven days; 

the hearing officer considers whether the inmate is guilty and 

determines the appropriate sanction. The notice further states 

that the inmate has the right to call witnesses and to question 

them, provided the witnesses are identified and the questions 

are presented to the hearing officer prior to the hearing date. 

Notices and reports of infractions are forwarded to 

Special Projects Officer Gary Crafts. Officer Crafts reviews 

each matter and then determines how the charge should proceed. 

For instance, he may determine that the charge should be 

changed, dismissed, or steered toward an informal resolution. 

He also may refer the matter for further investigation or for a 

disciplinary hearing. Officer Crafts referred both of 

Mr. Goguen’s June 23 infractions for disciplinary hearings. 

Mr. Goguen identified his witnesses by description and cell 

location, but not by name. He also did not put in writing the 
‐10‐

questions that he wanted witnesses to answer. As a result, 

neither Officer Crafts, nor the hearing officer, pursued any 

witness statements on Mr. Goguen’s behalf. 

A hearing was conducted on July 1 by Officer 

Eddie Jacques. At the hearing, Officer Jacques heard 

Mr. Goguen’s testimony, viewed still photos, reviewed the 

officers’ incident reports, and found Mr. Goguen guilty of 

“Giving, Receiving, or Swapping,” for which he received a verbal 

reprimand. Officer Jacques also found Mr. Goguen guilty of 

“Interfering” and “Provocation,” for which he received a verbal 

reprimand and a $10 fine. Officer Eddie Jacques stated in his 

reports that he had assessed zero days of disciplinary 

segregation. Mr. Goguen appealed the decision concerning 

interfering and provocation to the administrator of SCJ, 

Major David Allen, but the decision was affirmed. 

While these proceedings were ongoing, Mr. Goguen 

stayed in A-pod. His placement first was reviewed by nondefendant Lieutenant Campbell on June 26, 2011. 

Lieutenant Campbell determined that Mr. Goguen should remain in 

administrative segregation, and Mr. Goguen received a notice 

that he would be kept in administrative segregation and his 

placement again would be reviewed on July 1, 2011. 
‐11‐

On July 1, 2011, a hearing was held to review 

Mr. Goguen’s administrative-segregation status. Lieutenant 

Darlene Bugbee was the hearing officer, and Officer French and 

non-defendant Officer Welsh served as committee members. 

Mr. Goguen attended and testified at the hearing, after which 

the committee determined that Mr. Goguen should remain in 

administrative segregation until a classification committee 

could review his security status. 

On July 6, 2011, another administrative segregation 

hearing occurred. This time, Lieutenant Bugbee was the hearing 

officer; Sergeant Plourd and Officer Meunier served as committee 

members. Following the hearing, at which Mr. Goguen testified, 

the committee determined that he should be removed from 

administrative segregation because classification had reviewed 

Mr. Goguen’s status and had determined that he still should be 

classified as a medium-security inmate. Mr. Goguen therefore 

was released from administrative segregation and returned to Epod, where he remained until he was transported to the Penobscot 

County Jail on July 10, 2011. 

2. July 15, 2011 Incident 

After Mr. Goguen returned to SCJ, Mr. Goguen again was 

placed in A-pod on July 15, 2011, as a result of a dispute 
‐12‐

concerning his bunk assignment. During cell reassignments, 

Mr. Goguen was assigned an upper bunk. Mr. Goguen, however, 

told Officer Michael Rizzo that he needed a lower bunk. When 

Officer Rizzo inquired of the medical department whether 

Mr. Goguen had a bottom-bunk restriction, the medical department 

responded that he did not. The parties give vastly different 

accounts of the events that followed. According to the 

defendants,5 Officer Rizzo ordered Mr. Goguen to move to the 

upper bunk, but Mr. Goguen refused and told Officer Rizzo to 

send him to A-pod, which Officer Rizzo did. Officer Rizzo also 

wrote a disciplinary report and a notice of infraction for a 

violation of B–11, “Order, Refusing to obey.”6  In his deposition, 

Mr. Goguen denied that he had been ordered to take an upper 

bunk; he testified that, after Officer Rizzo called the medical 

department and discovered that Mr. Goguen did not have a medical 

restriction for a lower bunk, Officer Rizzo “slammed [him] 

against the wall,” handcuffed him, and escorted him to A-pod.7 

The B-11 infraction eventually was dismissed. 

                                                 

5 The defendants’ version is set forth in their brief. See 

Appellants’ Br. 27–28. 

6 R.56-11 (SCJ Policy-“Inmate Discipline”) at 71. 

7 R.83 (Goguen Dep.) at 58–59.
‐13‐

Mr. Goguen’s placement in administrative segregation 

was reviewed by Lieutenant Campbell on July 18, 2011. He 

determined that Mr. Goguen should remain in administrative 

segregation. Mr. Goguen received notice of the decision and 

notice that his placement would be reviewed on July 22, 2011. 

On July 22, 2011, a hearing was held to review Mr. Goguen’s 

administrative segregation status; Lieutenant Campbell served as 

the hearing officer, and non-defendant Officers Jewell and 

Madore served as committee members. At the hearing, Mr. Goguen 

did not dispute that he told Officer Rizzo that he should be 

taken to A-pod if he was not going to be assigned a lower bunk; 

he does dispute that he was disruptive, that he argued, and that 

he refused an order, which were the bases for his transfer to Apod.8 The hearing committee determined that Mr. Goguen should 

remain in administrative segregation because of his habit of 

“arguing, wanting [his] own way, [and being] non-cooperative.”9 

On July 28, Mr. Goguen was removed from administrative 

                                                 

8 See R.56-3 (Administrative Segregation Status Placement dated 

7/15/11) at 14 (“Inmate Robert Goguen placed on Ad Seg for 

disrupting the pod during cell moves. Inmate Goguen argued with 

the pod officer during cell moves.”). 

9 Id.
‐14‐

segregation and moved back to E-pod because he was “[r]eady to 

follow orders” and was placed in an upper bunk.10

Shortly after Mr. Goguen returned to E-pod, 

Officer Rizzo approached Mr. Goguen and stated: “‘I will make 

sure that you do not come back to this block. I will do 

whatever it takes in my personal power to make sure you spend 

the rest of your time in A[-]pod. I don’t care who I have to 

talk to.’”11

3. August 31/September 1, 2011 Incidents 

On August 31, 2011, Mr. Goguen was on a telephone call 

with a federal magistrate judge about another lawsuit. 

Major Allen interrupted the call and insisted that Mr. Goguen 

hang up the telephone. When Mr. Goguen tried to explain that he 

was on the telephone with a federal magistrate judge, 

Major Allen “took the phone from [Mr. Goguen’s] hand, hung the 

phone up, told [Mr. Goguen] to put [his] hands behind [his] 

back, [and] [Mr. Goguen] was handcuffed, shackled and escorted 

to A[-]pod.”12 Once there, Major Allen informed him that he 

(Mr. Goguen) would not be threatening other officers with 

                                                 

10 Id.

11 R.83 (Goguen Dep.) at 62.

12 Id. at 17.
‐15‐

lawsuits under his watch.13 When it was determined that 

Mr. Goguen in fact had been on the telephone with a federal 

magistrate judge, Mr. Goguen was escorted back to the telephone 

to resume the call. 

Also on August 31, Officer Rizzo wrote a disciplinary 

report and a notice of infraction for a violation of B–13, 

“Provocation,” for arguing. These charges were later dismissed. 

The record does not contain either the report or the dismissal. 

The record does contain, however, an “Administrative Segregation 

Status Placement” dated August 31, 2011.14 According to that 

document, Mr. Goguen was placed in segregation by 

Sergeant Plourd for “continually arguing with Staff in the 

performance of their duties” and “threatening Staff with 

lawsuits.”15 The following day, however, Lieutenant Bugbee 

reviewed the placement and removed Mr. Goguen from A-pod because 

Major Allen had “advise[d]” that Mr. Goguen did “not pose [a] 

threat to security.”16

                                                 

13 See id. at 16–17.

14 R.56-3 at 17.

15 Id.

16 Id.
‐16‐

Mr. Goguen remained in E-pod for a little over three 

and one-half hours. At that time, officers were conducting a 

count of the inmates. When officers reached Mr. Goguen’s cell, 

his back was facing the officers, and he appeared to be 

urinating. Mr. Goguen later testified that he in fact was 

urinating during the count. Officer Rizzo wrote a disciplinary 

report and a notice of infraction for a violation of A–05, 

“Count.”17 Officer Rizzo also wrote up Mr. Goguen for violations 

of B–19, “Threatening,” and B–13, “Provocation,” for swearing 

and calling Officer Rizzo names. Mr. Goguen again was placed in 

A-pod. 

On September 1, 2011, Officer Gilblair notified 

Mr. Goguen of this infraction and asked for Mr. Goguen’s version 

of the events. On September 8, 2011, Mr. Goguen received notice 

that a disciplinary hearing for the incident was scheduled for 

September 13, 2011. Officer Crafts presided at the hearing, at 

which Mr. Goguen testified. As part of this hearing, 

Officer Crafts reviewed answers to written questions posed by 

Mr. Goguen to his cell mate. Following the hearing, 

                                                 

17 R.56-11 (SCJ Policy-“Inmate Discipline”) at 70. The policy 

defines this violation as follows: “A-05 Count-Non presence at 

or interfering with the taking of an inmate count, either formal 

or informal.” Id. 
‐17‐

Officer Crafts found Mr. Goguen guilty of the count violation, 

but not guilty of the threatening and provocation violations. 

For punishment, Officer Crafts imposed a $25 fine and three 

days’ disciplinary segregation. Major Allen denied Mr. Goguen’s 

appeal. 

Mr. Goguen’s administrative segregation initially was 

reviewed on September 4 by Lieutenant Campbell, who determined 

that Mr. Goguen should remain in A-pod. Mr. Goguen received 

notice to that effect and was advised that his placement would 

be reviewed again on September 9. At that hearing, 

Sergeant Plourd presided, and Officer French and non-defendant 

Officer Ducharme acted as committee members. The parties 

dispute the testimony that was given. According to the 

defendants, Mr. Goguen testified that there was an ongoing 

investigation concerning Officer Rizzo and other staff at the 

SCJ.18 The committee determined that Mr. Goguen should remain in 

administrative segregation until the investigation into the 

incident concluded. 

                                                 

18 Mr. Goguen now denies saying this; according to Mr. Goguen, he 

testified at the hearing that Officer Rizzo’s statements should 

be investigated. Mr. Goguen, however, does not point to any 

sworn testimony in the record to support his denial. 
‐18‐

Mr. Goguen’s administrative segregation was again 

reviewed on September 16, with Lieutenant Campbell as hearing 

officer and non-defendant Officers Marose and Davis as committee 

members. At the hearing, the committee considered evidence that 

there was no investigation of SCJ officers pending, Mr. Goguen 

had no new write-ups, and he had been medically cleared. The 

committee determined that Mr. Goguen should be removed from 

administrative segregation, but placed on disciplinary 

segregation for an old write-up. On September 21, 2011, 

Mr. Goguen was transferred back to E-pod, where he remained 

until October 21, 2011. 

4. September 29 and October 2 Infractions 

On September 29, 2011, Officer Rizzo saw Mr. Goguen 

drinking black liquid from a cup. Officer Rizzo asked Mr. Goguen 

if he had a receipt for coffee; Mr. Goguen responded that he did 

not. Officer Rizzo told Mr. Goguen to dump it out, and, a few 

minutes later, Mr. Goguen complied. Mr. Goguen claims that the 

liquid was water and that it was the cup that was black. 

Officer Rizzo wrote a disciplinary report and a notice of 

infraction for a violation of C–04, “Giving, Receiving, or 

Swapping.” According to Mr. Goguen’s testimony, Officer Rizzo 

was on the upper tier, and he was on the lower tier when this 
‐19‐

encounter occurred; Mr. Goguen asserts that the cup itself was 

“disgustingly black” and that Officer Rizzo refused to inspect 

it.19

Officer Meunier gave Mr. Goguen a notice of the 

September 29 infraction that same day. Officer Meunier spoke to 

Mr. Goguen and asked for his side of the story. The following 

day, Mr. Goguen received notice that a disciplinary hearing was 

scheduled for October 3, 2011. 

On October 2, 2011, Mr. Goguen was seen eating half of 

a sandwich while he had a full uneaten sandwich on his tray. A 

review of video showed that another inmate had pushed his tray 

to the center of the table and that Mr. Goguen removed the 

sandwich. Non-defendant Officer Baldinelli wrote a disciplinary 

report and a notice for a violation of C–14, “Unauthorized 

Food,”20 and Mr. Goguen received a copy of the notice. Nondefendant Officer Munn was assigned to investigate the incident 

and spoke to Mr. Goguen. Officer Munn told Mr. Goguen what the 

alleged violation was about. Mr. Goguen stated: “Ah f--k it”; 

he also stated that another inmate “threw us under the bus. I 

                                                 

19 R.83 (Goguen Dep.) at 79. 

20 R.56-11 (SCJ Policy-“Inmate Discipline”) at 73. 
‐20‐

don’t need to hear any more.”21 The following day, Mr. Goguen 

was given notice that a disciplinary hearing for the sandwich 

incident was scheduled for October 6, 2011. 

The disciplinary hearing for the coffee incident was 

held on October 3. Officer Jeffrey Jacques served as the 

hearing officer. Mr. Goguen testified at the hearing and stated 

that the liquid was water, not coffee. He had been given a few 

still photos to present as evidence at the hearing. Officer 

Jeffrey Jacques found Mr. Goguen guilty of the violation and 

imposed a one-day cell restriction. An inmate on cell 

restriction is allowed to come out of the cell to eat, to 

shower, and for appointments, but may not leave the cell for 

recreation. Mr. Goguen did not appeal this decision. 

The disciplinary hearing for the sandwich incident was 

held on October 6. Non-defendant Officer Michael Johnson was 

the hearing officer. Mr. Goguen pleaded guilty, and Officer 

Johnson imposed a four-hour cell restriction. 

5. October 13, 2011 Cell Search 

On October 13, 2011, Sergeant Plourd ordered 

Officer Rizzo to perform a search of Mr. Goguen’s cell. 

                                                 

21 R.45-9 (Munn Aff.) at 1.
‐21‐

Mr. Goguen asserts that, during the search, Officers Rizzo and 

Eddie Jacques took thousands of pages of discovery related to 

one of Mr. Goguen’s then-pending civil cases (against 

correctional officers at another county jail) and threw them on 

the floor. Some documents landed in the toilet and sink; all 

were out of order and strewn across the cell. The search 

uncovered a soap dish and soap; neither inmate in the cell had a 

receipt, and both disclaimed ownership of the items. 

Officer Rizzo found a cup of coffee, dried paper blocking most 

of the vent, and an empty coffee bag with a sugar packet under 

Mr. Goguen’s mattress, all of which were contraband. 

Officer Rizzo also found an envelope on Mr. Goguen’s side of the 

cell that was sealed and was marked as legal paperwork. 

Officer Rizzo opened the envelope and saw a memo from 

Major Allen, at which point he stopped and took the paperwork to 

Sergeant Plourd to review. Sergeant Plourd looked at the 

paperwork and instructed Officer Rizzo to return it to 

Mr. Goguen, which Officer Rizzo did. 
‐22‐

Officer Rizzo wrote a disciplinary report and a notice 

of infraction for a violation of C–09, “Possession,”22 concerning 

the items found in the cell, but the charge later was dismissed. 

6. October 17, 2011 Shower Request 

On October 17, 2011, Mr. Goguen was housed in a cell 

on the bottom tier in E-pod. He asked to go upstairs to shower 

and was told that he was not allowed to go to the upper tier for 

any reason and that, as a lower-tier inmate, he could not shower 

after the top of the hour. Later Mr. Goguen, along with another 

inmate named Gill, argued with Officer Rizzo about the shower 

rules.23 The following day, Officer Rizzo wrote a disciplinary 

report and a notice of infraction for a violation of B–13, 

“Provocation,” in connection with the shower incident. Officer 

Eddie Jacques investigated the incident and spoke to Mr. Goguen. 

The officer told Mr. Goguen the nature of the alleged violation, 

asked for Mr. Goguen’s version of the events, and gave 

Mr. Goguen a copy of the notice. On October 20, 2011, 

Mr. Goguen received notice that a disciplinary hearing was 

scheduled for October 25, 2011. The hearing actually occurred 

                                                 

22 R.56-11 (SCJ Policy-“Inmate Discipline”) at 73.

23 Mr. Goguen does not allege that the rules did not exist or 

that they were being enforced in an arbitrary manner. 
‐23‐

on October 31, 2011, with Officer Jeffrey Jacques as hearing 

officer. The officer heard testimony from Mr. Goguen and also 

considered video footage and the written responses to questions 

posed by Mr. Goguen to Llewellyn Eaton, Officer Julie Hayden, 

and Officer Rizzo.24 Officer Jeffrey Jacques found Mr. Goguen 

guilty of the provocation violation and imposed three days of 

disciplinary segregation. Major Allen denied Mr. Goguen’s 

appeal. 

7. Miscellaneous Incidents, Grievances, and Requests 

Throughout September and October 2011, Mr. Goguen 

filed a number of grievances concerning the actions of SCJ 

officers. One grievance concerned a book entitled, “The 

Prisoner’s Self Help Litigation Manual.” According to 

Mr. Goguen, the book had been delivered to him at the beginning 

of September. When he returned from recreation on September 6, 

however, the book, as well as Mr. Goguen’s personal notes on the 

book, had been removed from his cell, allegedly by Officer 

Shawn Maguire. Mr. Goguen filed a grievance concerning the 

missing book. On September 21, Officer Maguire wrote a 

                                                 

24 Mr. Goguen also had posed questions to another inmate, Gill, 

but Gill had been released so was unavailable to respond to 

questions. 
‐24‐

memorandum responding to this and four other grievances. 

Subsequently, Mr. Goguen filed grievances concerning his lack of 

access to various resources including law library books, prison 

policies, Title 34–A of the Maine Revised Statutes, and the 

self-help litigation manual; he also filed grievances concerning 

the staff at SCJ opening his legal mail.25 One of these 

subsequent grievances, filed on September 29, concerned the 

actions of Officer Rizzo. According to Mr. Goguen’s grievance, 

Officer Rizzo refused to have someone examine the documents that 

Mr. Goguen intended to bring to a meeting with his attorney. 

                                                 

25 Non-legal mail is opened and inspected for contraband. Any 

mail that is determined to be legal mail is not to be opened, 

but is attached to a legal mail inspection form and forwarded to 

the housing unit. The following day an officer in the housing 

unit delivers the mail and opens any legal mail in the presence 

of the inmate. Once the officer determines that the mail does 

not contain contraband, the legal mail is turned over to the 

inmate. 

Inmates are not allowed to have sealed envelopes in their 

cells, and there is no exception for legal mail. SCJ policy 

does permit inmates to send sealed envelopes without censoring, 

inspection, or restriction to certain recipients. 

According to the defendants, if an inmate in A-pod has 

outgoing legal mail, A-pod officers go around on the night shift 

with a sealed box for the inmate to place any legal mail in the 

box. The inmate seals the envelope immediately before placing 

it in the box. For inmates in E-pod, there is a box for mail in 

the pod. This box is picked up daily. The inmate can seal any 

mail right before placing it in the box. Mr. Goguen maintains 

that there is no rule about having to seal or not seal any 

envelopes. 
‐25‐

According to Mr. Goguen, Officer Rizzo both denied his request 

and taunted him in doing so. 

On October 12, Officer Margaret Kelly confiscated 

Mr. Goguen’s legal file as he arrived for a meeting with his 

attorney, although the documents already had been examined for 

contraband and had been authorized for use at the meeting. The 

file was returned to Mr. Goguen later, but he did not have the 

benefit of his research and documentation in discussing his 

criminal case with counsel. 

8. October 21, 2011 Placement in A-pod 

On October 21, 2011, Lieutenant Bugbee placed 

Mr. Goguen in administrative segregation and transferred him to 

A-pod because he “pose[d] a serious threat [to the] security or 

orderly running of the institution.”26 The “factual basis for 

[the] placement” was that Mr. Goguen had not “adjust[ed] to the 

rules and regulations set forth by this facility” and had 

continued to argue with and “be[] confrontational with Staff.”27

This placement was reviewed by non-defendant Sergeant Pullen on 

October 24, 2011, who determined that Mr. Goguen should remain 

                                                 

26 R.56-3 (Administrative Segregation Status Placement dated 

10/21/11) at 23. 

27 Id.
‐26‐

in administrative segregation; Mr. Goguen was provided with 

notice of this decision the day it issued. 

9. Maximum Security Classification

On October 26, 2011, Mr. Goguen was reclassified from 

medium security to maximum security because it was determined 

that he was a danger to the safety and security of the facility. 

Mr. Goguen received notice of his reclassification, and he 

appealed the reclassification decision. The appeal hearing was 

held on November 1, 2011. At the appeal hearing, the 

classification committee consisted of Officer Theresa Brown, 

Lieutenant Bugbee and two non-defendant officers, Stephen Giggey 

and Chris Murray. Mr. Goguen was present and testified at the 

hearing. The classification committee reviewed log entries 

concerning Mr. Goguen dated between July 23, 2011, and October 

21, 2011. It determined that Mr. Goguen would remain in maximum 

security because he was very argumentative and disrespectful to 

officers and because he was unable to follow the rules of the 

facility. The classification committee makes its determinations 

based on majority vote. 
‐27‐

Mr. Goguen was told that he could appeal his 

classification decision to Major Allen, but he did not do so.28

According to Mr. Goguen, an appeal would have been futile 

because it was Major Allen who had reclassified him to maximum 

security only five days earlier. Mr. Goguen remained in A-pod 

from October 21, 2011, until he was transferred out of SCJ in 

December 2011. 

Maximum security inmates are allowed the same amount 

of recreation, time for showers, and time for phone calls as 

inmates in administrative segregation. However, corrections 

officers place maximum security inmates in four-point restraints 

when they use the library cart and make phone calls. Mr. Goguen 

maintains that Sergeant Plourd imposed this requirement only on 

him, and this practice prevented him from accessing the library 

cart.29 He testified that this practice was enforced by 

Lieutenant Bugbee and Officer Jessica Almeida as well.30

                                                 

28 An inmate is permitted to request review of classification 

status by a classification supervisor every sixty days. An 

inmate’s classification status is automatically reviewed every 

ninety days. 

29 See R.83 (Goguen Dep.) at 42.

30 See id. at 43, 100.
‐28‐

10. Other Incidents 

Among the other bases for Mr. Goguen’s complaints is 

that a drawing he made was confiscated as contraband because it 

contained gang symbols. Mr. Goguen had left the drawing inside 

a magazine in his cell, and the magazine with the drawing still 

in it was found in the possession of another inmate. Color 

drawings are considered contraband at the SCJ because some 

colored drawings have been used to conceal drugs; the inmates 

lick or swallow the colored paper to get high. Mr. Goguen 

maintains that there were no gang symbols in the drawing and 

questions whether inmates are able to hide drugs in a drawing 

made inside the SCJ. 

Mr. Goguen also testified that, on November 6, 2011, 

after being reclassified as a maximum-security inmate, Officers 

Eddie Jacques and Meunier ordered him to turn his back to the 

cell door and put his hands together out through a door slot. 

They then handcuffed him and pulled the door open suddenly, 

wrenching his arms and shoulders and causing severe pain in his 

shoulder and back.31

                                                 

31 See id. at 94–95.
‐29‐

Finally, Mr. Goguen recounted that, in December 2011, 

he was moved by Officer Meunier from an observation cell to 

another A-pod cell that had blood, vomit, and feces in it. 

According to Mr. Goguen, both Officer Meunier and Officer Kelly 

denied him supplies to clean the cell. 

B.

1. 

Mr. Goguen filed this action under 42 U.S.C. § 1983, 

naming numerous officers and administrators at SCJ.32 In his 

second amended complaint, Mr. Goguen detailed the events 

described above and alleged that these and other actions taken 

by the defendants violated his right to be free from 

unreasonable searches and seizures under the Fourth Amendment, 

violated his right to due process under the Fourteenth 

Amendment, his right to petition the Government for redress 

under the First Amendment, his right of access to counsel under 

                                                 

32 Specifically, Mr. Goguen named the following defendants: 

Major Allen, Lieutenant Bugbee, Sergeant Plourd, Classifications 

Supervisor Theresa Brown, and Officers Almeida, Crafts, French, 

Gilblair, Hayden, Eddie Jacques, Jeffrey Jacques, Kelly, 

Maguire, Meunier, Rizzo, and Cory Swope. 
‐30‐

the Sixth Amendment, and his right under the Eighth Amendment to 

be free from cruel and unusual punishment.33 

                                                 

33 He alleged: 

(1) Officers intentionally had 

“fabricat[ed] reports knowing the 

results would lead to immediate 

segregation [and] use[d] administrative 

segregation . . . as a means to punish” 

him, in violation of his Fourteenth 

Amendment due process rights; 

(2) Officers intentionally had 

“confiscat[ed] [his] legal documents, 

law library books,” and other 

materials, arbitrarily had prevented 

him from using the library cart, and 

had interfered with his confidential 

communication with courts and his 

counsel, in violation of the First and 

Sixth Amendments and state law; 

(3) Officers arbitrarily had kept him in 

administrative segregation, in 

violation of his Fourteenth Amendment 

due process rights; 

(4) Officers had “persecuted” him in 

retaliation for his “filing grievances” 

and “complaining to officials about 

wrongful conduct,” in violation of the 

First Amendment; 

(5) Officers deliberately and repeatedly 

had “subjected [him] to visual body 

cavity searches without justification,” 

in violation of his Fourth, Eighth, and 

Fourteenth Amendment rights; 

(6) Officers had confined him to an 

unsanitary cell and had provided him 

unsanitary food service, in violation 

   
‐31‐

Following discovery, the defendants filed a 

comprehensive dispositive motion. The defendants maintained 

that many of Mr. Goguen’s allegations -- that officers had 

denied him use of his legal materials during his meeting with 

his attorney, had limited his access to the library cart, and 

had served him food in an unsanitary manner, for example -- 

failed to state a claim for relief. The defendants moved for 

summary judgment on the merits with respect to Mr. Goguen’s 

claim that he had suffered retaliation. According to the 

defendants, it was “difficult to discern . . . which actions the 

Plaintiff allege[d] were retaliation”; but, with respect to the 

situations he had mentioned specifically, there was no evidence 

of a causal link between his grievances and the alleged 

retaliation.34 The defendants also argued that they were 

entitled to summary judgment with respect to Mr. Goguen’s 

Fourteenth Amendment Due Process claim and with respect to his 

Eighth Amendment claim. Turning to the Due Process claim, the 

                                                                                                                                                             

of his Eighth and Fourteenth Amendment 

rights; and 

(7) Officers collectively had conspired to 

deprive him of his constitutional 

rights. 

R.24 at 51-54. 

34 R.44 at 13–14. 
‐32‐

defendants noted that, under Bell v. Wolfish, 441 U.S. 520 

(1979), the key question was whether the conditions to which 

Mr. Goguen was subjected constituted “punishment” that required 

“‘an adjudication of guilt in accordance with due process of 

law.’”35 However, they continued, “not all restrictions placed 

upon a pretrial detainee are punishment”: a condition, 

restriction or disability “‘reasonably related to a legitimate 

governmental objective, . . . does not, without more, amount to 

“punishment.”’”36 They submitted that, because Mr. Goguen’s 

placements in administrative segregation were justified 

initially by his violations of jail rules, and then were 

reviewed within seventy-two hours, the requirements of due 

process were met. 

The defendants also maintained that they were entitled 

to summary judgment on Mr. Goguen’s constitutional claims 

related to being strip searched. They noted that, after 

balancing the interests of the institution against the privacy 

interests of the inmates, the Supreme Court in Bell had 

concluded that subjecting a pretrial detainee to visual bodycavity inspections following contact with individuals from 

                                                 

35 Id. at 16 (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)).

36 Id. (quoting Bell, 441 U.S. at 539).
‐33‐

outside the institution did not violate due process. They 

argued that the strip searches to which Mr. Goguen was subjected 

while he was in administrative segregation similarly were 

justified by concerns of “‘[m]aintaining institutional security 

and preserving internal order and discipline.’”37 Alternatively, 

the defendants contended that they were entitled to qualified 

immunity on this claim. According to the defendants, “it [wa]s 

not clearly established that the officers involved in strip 

searching inmates, including those who are pretrial, upon entry 

or exit from a cell in A-pod were violating a constitutional 

right. Any mistake as to the constitutionality of their actions 

was reasonable.”38

2. 

After briefing was completed, the magistrate judge 

issued an exhaustive report and recommendation. In it, the 

magistrate judge summarized Mr. Goguen’s claims accordingly: 

Goguen maintains that he was subjected 

to intentional punishment based on his 

tendency to file grievances and speak out if 

he perceived what he believed to be a 

violation of his rights or a violation of 

prison policy, and also based on his 

litigation against correctional officers 

                                                 

37 Id. at 26 (quoting Bell, 441 U.S. at 546).

38 Id. at 27.
‐34‐

from another facility. The punishment 

consisted of excessive confinement in 

administrative segregation, unreasonable 

reclassification to maximum security, 

excessive strip searches and body cavity 

searches, confiscation of legal documents, 

interference with his communications with 

the court and with counsel, confiscation of 

personal property, placement in an 

unsanitary cell, unsanitary food practices, 

application of excessive force, and 

imposition of four-point restraints to 

frustrate access to legal materials. Goguen 

also advances a claim of [F]irst [A]mendment 

retaliation, another claim that has the 

ability to gather up multiple circumstances 

in support of one claim. In addition to 

advancing these two core theories, Goguen 

also itemizes a laundry list of smaller 

claims based on each distinct incident of 

which he complains.[39] 

The magistrate judge then reviewed each of these claims. With 

respect to Mr. Goguen’s claim that he was subjected to punitive 

strip searches, the magistrate judge explained that 

[t]he real issue here involves the 

imposition of punishment on a pretrial 

detainee, without adequate predeprivation 

process. Although Goguen’s move was 

classified as administrative segregation 

rather than disciplinary segregation, if the 

conditions of confinement imposed on him in 

A-pod crossed the punishment threshold, a 

claim is established for imposing prehearing 

punishment on a pretrial detainee.[40] 

                                                 

39 Goguen v. Gilblair, No. 2:12-cv-00048-JAW, 2013 WL 5407225, at 

*24 (D. Me. Sept. 25, 2013). 

40 Id. at *29.
‐35‐

The magistrate judge noted that there were additional 

restrictions attendant to administrative segregation, but 

concluded that it was not necessary “to decide whether 

these conditions, in combination, cross the ‘punitive’ 

threshold for a pretrial detainee,” because Mr. Goguen’s 

placement in administrative segregation also involved 

“multiple daily strip searches and visual body cavity 

searches.”41 “This final condition,” the magistrate judge 

explained, “is sufficient to support a finding of punitive 

confinement, without due process, regardless of the fact 

that Somerset County calls it ‘administrative’ 

confinement.”42 Critical to the magistrate judge’s 

conclusion was the fact that, 

after Goguen eventually received process at 

the Jail, his actual sanctions typically 

paled in comparison to what he experienced 

while waiting for the process to unfold. 

For example, he was assessed three days of 

disciplinary segregation for urinating 

during count, but suffered approximately 13 

days of what amounted to disciplinary 

segregation while awaiting his hearing.[43]

                                                 

41 Id.

42 Id.

43 Id.
‐36‐

The magistrate judge therefore concluded that “[t]hese 

conditions . . . raise a genuine issue of material fact 

concerning the denial of due process.”44

Addressing the retaliation claim, the magistrate judge 

found that Mr. Goguen had established a causal link between his 

protected activity -- filing grievances -- and several actions 

of the defendants, such as placing Mr. Goguen in four-point 

restraints, destroying legal documents incident to a search, and 

subjecting Mr. Goguen to physical pain. 

The magistrate judge then reviewed her findings and 

concluded that, with respect to Officers Brown, Crafts, Hayden, 

Maguire, Swope, and Jeffrey Jacques, Mr. Goguen had not 

sufficiently developed his claims. As for the due process 

claim, however, she concluded that there was sufficient evidence 

to raise a genuine issue of material fact 

concerning those officers who either 

supported or directed the imposition of 

administrative segregation on Goguen prior 

to completion of the due process procedures 

outlined in Wolff v. McDonnell[45] and against 

                                                 

44 Id.

45 In Wolff v. McDonnell, 418 U.S. 539, 563 (1974), the Court 

held that “the minimum requirements of procedural due process” 

are satisfied by providing to prisoners “advance written notice 

of the claimed violation and a written statement of the 

   
‐37‐

those officers who actually conducted or 

ordered Goguen to comply with the strip 

search and visual body cavity search process 

while Goguen was subject to so-called 

“administrative” segregation.[46] 

 

According to the magistrate judge, those defendants were Major 

Allen, Lieutenant Bugbee, Sergeant Plourd, and Officers Almeida, 

French, Gilblair, Meunier, and Rizzo. Turning to the 

retaliation claim, the magistrate judge determined that 

there is a genuine issue concerning those 

officers who supported or directed the 

imposition of administrative segregation on 

Goguen prior to completion of the due 

process procedures outlined in Wolff v. 

McDonnell, and the cumulative impact of 

disrupting court conferences, scattering 

legal papers throughout Goguen’s cell, 

imposing four-point shackles when Goguen 

accessed the library cart, and using 

unnecessary force. This claim is viable 

against Allen, Almeida, Bugbee, Gilblair, 

Kelly, Meunier, Plourd, and Rizzo.[47] 

The magistrate judge also addressed the defendants’ 

assertion of qualified immunity. She explained that her 

“recommendation that the due process and retaliation claims go 

forward is premised in large measure on the imposition of 

multiple daily strip searches and visual body cavity searches on 

                                                                                                                                                             

factfinders as to the evidence relied upon and the reasons for 

the disciplinary action taken.” 

46 Goguen, 2013 WL 5407225, at *32.

47 Id.
‐38‐

a pretrial detainee in advance of Wolff v. McDonnell process.”48 

The magistrate judge rejected the defendants’ argument that 

established case law allowed for the routine strip searching of 

inmates upon leaving or entering a segregation unit: 

The cases do reflect that the use of such 

searches is permitted in the context of 

introduction to a facility, or transfer to 

segregated confinement, or upon return from 

contact visits. Bell v. Wolfish itself 

supports the point as even pretrial 

detainees were subject to a facility-wide 

policy of imposing strip searches following 

contact visits. The difference in this 

case, however, is that the issue concerns 

compliance with the Wolff v. McDonnell due 

process requirements before transferring a 

pretrial detainee in general population to 

punitive conditions in segregated 

confinement. A change in conditions that 

imposes multiple daily strip- and visual 

body cavity searches as the price of any 

out-of-cell liberty can reasonably be deemed 

punitive in comparison to the conditions of 

prison life existing in general population. 

The right of a pretrial detainee to receive 

due process prior to the imposition of 

prison-based punishment has been clearly 

established since the 1970s decisions in 

Wolff v. McDonnell and Bell v. Wolfish. 

Consequently, I recommend that the court not 

recognize qualified immunity in this 

particular context.[49]

                                                 

48 Id.

49 Id. at *33. 
‐39‐

In short, the magistrate judge determined that the record 

presented a genuine issue of triable fact as to (1) whether the 

defendants’ actions in transferring Mr. Goguen to administrative 

segregation were punitive in nature, especially considering the 

conditions in A-pod compared to the infractions which prompted 

his transfer, and (2) whether the officers’ motives in taking 

these and other actions were prompted by Mr. Goguen’s protected 

activity in violation of the First Amendment. 

The defendants filed objections to the magistrate 

judge’s recommendations. The district court, however, affirmed 

the recommended disposition in its entirety. The defendants 

timely appealed.50

                                                 

50 In their notice of appeal, the defendants identified the 

following portions of the order as the bases for their appeal: 

(1) the decision that Allen, Almeida, 

Bugbee, French, Gilblair, Kelly, 

Meunier, Plourd and Rizzo are not 

entitled to qualified immunity on the 

claim that they violated procedural due 

process by imposing administrative 

segregation on Goguen; and 

(2) the decision that Allen, Almeida, 

Bugbee, Gilblair, Eddie Jacques, Kelly, 

Meunier, Plourd and Rizzo are not 

entitled to qualified immunity on the 

claim that they retaliated against 

Goguen in violation of his First 

Amendment rights; and 

   
‐40‐

                                                                                                                                                             

(3) the decision that Allen, Almeida, 

Bugbee, French, Gilblair, 

Eddie Jacques, Kelly, Meunier, Plourd 

and Rizzo are not entitled to qualified 

immunity on the conspiracy claim. 

R.76 at 1-2. 

In their summary judgment motion, however, the defendants 

urged that they were entitled to qualified immunity only with 

respect to Mr. Goguen’s claims related to the strip searches: 

Considering the Court’s recent decision in 

Florence [v. Board of Chosen Freeholders, 

132 S. Ct. 1510 (2012)], it is not clearly 

established that the officers involved in 

strip searching inmates, including those who 

are pretrial, upon entry or exit from a cell 

in A-pod were violating a constitutional 

right. Any mistake as to the 

constitutionality of their actions was 

reasonable. 

R.44 at 27. In their objections to the report and 

recommendation, the defendants attempted to expand their 

qualified immunity argument to all of the claims on which they 

had maintained that they were entitled to judgment as a matter 

of law: 

The qualified immunity standard is very 

broad and protects “all but the plainly 

incompetent or those who knowingly violate 

the law.” In this case, a discussion of why 

there were not constitutional violations is 

made above. In addition, Defendants Allen, 

Almeida, Bugbee, French, Eddie Jacques, 

Gilblair, Kelly, Meunier, Plourd and Rizzo 

are entitled to qualified immunity because 

the right in question was not clearly 

established. 

R.70 at 13 (citations omitted). In their briefing before this 

court, the defendants primarily focused on the use of strip 

searches for detainees in administrative segregation. We cannot 

conclude that this sufficed to raise the issue of the 

   
‐41‐

II.

Our first task is to determine whether we may 

entertain the defendants’ appeal. Mr. Goguen argues that we 

have jurisdiction over an interlocutory appeal from the denial 

of summary judgment on qualified immunity grounds “only when the 

denial of the motion is based on ‘purely legal’ grounds.”51 He 

maintains therefore that we do not have jurisdiction over this 

appeal because the magistrate judge concluded that there were 

“question[s] of fact to be resolved by the factfinder” 

concerning the punitive nature of Mr. Goguen’s confinement.52 We 

agree that appellate jurisdiction is lacking. 

A. 

In Johnson v. Jones, 515 U.S. 304 (1995), the Supreme 

Court considered whether an appellate court could entertain “an 

                                                                                                                                                             

defendants’ qualified immunity with respect to Mr. Goguen’s 

claims unrelated to strip searches. 

That said, while Mr. Goguen focused exclusively on this issue, 

he does not maintain that the defendants’ other qualified 

immunity arguments are subject to forfeiture. Consequently, we 

have considered the defendants’ arguments on qualified immunity 

that are not related directly to the strip searching of pretrial 

detainees in administrative segregation. For the reasons set 

forth infra at II.B., however, these arguments do not alter our 

conclusion that we lack jurisdiction over the present appeal.

51 Appellee’s Br. 5. 

52 Id. (internal quotation marks omitted).
‐42‐

immediate appeal of a district court order denying [the 

defendants’] motion for summary judgment” when “[t]he order in 

question resolved a fact-related dispute about the pretrial 

record.” Id. at 307. Guided by the language of the statute 

authorizing appellate review (28 U.S.C. § 1291), the narrowness 

of the collateral order doctrine, and its decision in Mitchell 

v. Forsyth, 472 U.S. 511 (1985), in which it had recognized the 

denial of qualified immunity as an appealable order, the Court 

concluded that “a defendant, entitled to invoke a qualified 

immunity defense, may not appeal a district court’s summary 

judgment order insofar as that order determines whether or not 

the pretrial record sets forth a ‘genuine’ issue of fact for 

trial.” Johnson, 515 U.S. at 319–20. 

Beginning with Stella v. Kelley, 63 F.3d 71 (1st Cir. 

1995), we have explored the contours and confines of Johnson’s 

holding. In Stella, we observed that, 

on the one hand, a district court’s pretrial 

rejection of a proffered qualified immunity 

defense remains immediately appealable as a 

collateral order to the extent that it turns 

on a pure issue of law, notwithstanding the 

absence of a final judgment. On the other 

hand, a district court’s pretrial rejection 

of a qualified immunity defense is not 

immediately appealable to the extent that it 

turns on either an issue of fact or an issue 

perceived by the trial court to be an issue 

of fact. In such a situation, the movant 
‐43‐

must await the entry of final judgment 

before appealing the adverse ruling. 

The bottom line, then, is simply this: 

a summary judgment order which determines 

that the pretrial record sets forth a 

genuine issue of fact, as distinguished from 

an order that determines whether certain 

given facts demonstrate, under clearly 

established law, a violation of some 

federally protected right, is not reviewable 

on demand. 

Id. at 74 (emphasis added) (citations omitted).53

We had an opportunity to apply Johnson again in Díaz v. 

Martínez, 112 F.3d 1 (1st Cir. 1997). In that case, the 

plaintiffs sued defendant Díaz, a rogue police officer, and his 

supervisor, Tomás Vázquez Rivera, for the personal injuries and 

the wrongful death of a family member stemming from defendant 

Díaz’s use of his weapon. Vázquez moved for summary judgment on 

qualified immunity grounds, the district court denied the 

motion, and Vázquez appealed. We noted that, “under Johnson and 

Stella, . . . a defendant who, like Vázquez, has unsuccessfully 

sought summary judgment based on qualified immunity is permitted 

to appeal the resultant denial on an interlocutory basis only to 

                                                 

53 See also Behrens v. Pelletier, 516 U.S. 299, 313 (1996) 

(“Johnson reaffirmed that summary judgment determinations are 

appealable when they resolve a dispute concerning an ‘abstract 

issu[e] of law’ relating to qualified immunity.” (alteration in 

original)). 
‐44‐

the extent that the qualified immunity defense turns upon a 

‘purely legal’ question.” Id. at 3 (emphasis added). We 

concluded that Vázquez’s appeal “withers in the hot glare of 

these precedents.” Id. at 4. We explained: 

[W]e are left with Vázquez’s asseveration 

that the district court erred in denying his 

motion for summary judgment because, 

regardless of legal theory, the evidence was 

insufficient to establish deliberate 

indifference on his part, and, thus, he was 

entitled (at the least) to qualified 

immunity. But Judge Laffitte rejected this 

argument on the basis that the record 

contained controverted facts and that, if a 

factfinder were to resolve those disputes 

favorably to the plaintiffs, he could then 

find that Vázquez’s supervision of the 

disciplinary affairs bureau was so pathetic 

that his conduct constituted deliberate 

indifference to the plaintiffs’ rights. 

Since Vázquez does not argue that the facts 

asserted by the plaintiffs, even if 

altogether true, fail to show deliberate 

indifference –- he argues instead what his 

counsel termed at oral argument “the absence 

of facts,” i.e., that the facts asserted by 

the plaintiffs are untrue, unproven, warrant 

a different spin, tell only a small part of 

the story, and are presented out of context 

–- the district court’s determination is not 

reviewable on an interlocutory appeal. 

Id. at 4-5 (emphasis added) (footnote omitted). 

Two of our recent opinions speak directly to this 

issue in factual scenarios closely akin to that presented here. 

The first of these is Cady v. Walsh, 753 F.3d 348 (1st Cir. 
‐45‐

2014). In that case, Cady brought an action on behalf of her 

son, Paul Galambos, after Galambos died “from self-inflicted 

injuries that he suffered while he was a pretrial detainee at 

the Cumberland County Jail (CCJ).” Id. at 349. Cady alleged 

that the defendants had been deliberately indifferent to her 

son’s medical needs while he was detained at CCJ; the 

defendants, in response, filed a motion for summary judgment, in 

which they maintained that they were protected by qualified 

immunity. The district court, however, disagreed and denied the 

motion, reasoning “that there remained material and disputed 

issues of fact as to the claims against all three individuals 

which precluded the grant of immunity.” Id. at 350. The 

defendants subsequently appealed. 

Before this court, Cady argued that, under Johnson, we 

lacked jurisdiction to review the appeal. We therefore began 

our analysis of the jurisdictional issue with Johnson: 

Because the “qualified immunity defense 

is, in part, an immunity from trial as well 

as an immunity from damage awards,” a pretrial denial of the defense may, in some 

cases, be immediately appealable. . . . The 

Johnson Court held that a district court’s 

conclusion that a summary judgment record in 

a qualified immunity case raised a genuine 

issue of fact as to whether the defendants 

were involved in the alleged events was not 

immediately appealable under the collateral 

order doctrine. 
‐46‐

Johnson relied in part on the 

“separability” requirement of the collateral 

order doctrine. The Court reasoned: 

Where . . . a defendant simply 

wants to appeal a district court’s 

determination that the evidence is 

sufficient to permit a particular 

finding of fact after trial, it 

will often prove difficult to find 

any such “separate” question -- 

one that is significantly 

different from the fact-related 

legal issues that likely underlie 

the plaintiff’s claim on the 

merits. 

Questions of “evidentiary sufficiency” -- 

i.e., whether the record is capable of 

supporting a particular factual finding, 

rather than a particular legal conclusion -- 

“are not sufficiently distinct to warrant 

interlocutory appeal.” If appellate courts 

were to overlook this separability problem 

in the context of fact-based qualified 

immunity appeals and accept jurisdiction, 

those courts “may well be faced with 

approximately the same factual issue again, 

after trial,” and interlocutory review would 

prove an unwise use of appellate resources. 

Id. at 358–59 (citations omitted) (quoting Johnson, 515 U.S. at 

314, 316–17; Mlodzinski v. Lewis, 648 F.3d 24, 27 (1st Cir. 

2011)). 

In Cady, we faulted the defendants for failing to 

“develop the argument that, even drawing all the inferences as 

the district court concluded a jury permissibly could, they are 
‐47‐

entitled to judgment as a matter of law.” Id. at 359–60. We 

acknowledged that there had been cases in which the defendants 

had accepted as true the plaintiffs’ version of the facts (and 

the reasonable inferences from those facts), and we had 

exercised jurisdiction. Id. at 360 (citing Mlodzinski, 648 F.3d 

at 28). The defendants in Cady, however, had not done so; 

instead, their briefing disputed “both the facts identified by 

the magistrate judge as well as the inferences proffered by the 

plaintiff and deemed reasonable by the magistrate judge.” Id. 

We explained: 

With respect to each individual 

defendant, the defendants’ briefing objects 

to the way the district court construed the 

facts and argues that the district court and 

magistrate judge erred in their conclusions 

as to what a reasonable juror could find. 

Those fact-based arguments are inextricably 

intertwined with whatever “purely legal” 

contentions are contained in the defendants’ 

briefs: were we to attempt to separate the 

legal from the factual in order to address 

only those arguments over which we might 

permissibly exercise jurisdiction, we simply 

would not know where to begin. . . . [T]he 

defendants’ brief repeatedly attacks the 

district court’s factual conclusions, making 

no effort to separate fact-based arguments 

from “purely legal” ones. 

Id. The defendants’ “fact-based challenge[s],” we explained, 

“would . . . not defeat jurisdiction if [they] were advanced in 

the alternative. But nowhere in the defendants’ brief does 
‐48‐

there appear any developed argument that the defendants are 

entitled to summary judgment even if the district court’s 

conclusions about the record were correct.” Id. at 361. We 

therefore concluded that, “[b]ecause the defendants fail[ed] to 

pose even the qualified immunity question in a manner that would 

permit us to conclude that ‘the answer to it does not depend 

upon whose account of the facts is correct,’ we lack[ed] the 

authority to provide an answer.” Id. (quoting Stella, 63 F.3d 

at 75). 

Penn v. Escorsio, 764 F.3d 102 (1st Cir. 2014), 

petition for cert. filed, 83 U.S.L.W. 3586 (U.S. Dec. 15, 2014) 

(No. 14-709), is our latest substantive decision on the subject. 

As with Cady, Penn involved allegations that corrections 

officers were deliberately indifferent to the serious medical 

needs of a pretrial detainee, Lalli, and the defendant officers 

had moved for summary judgment on qualified immunity grounds. 

The defendants did not dispute that “clearly established law at 

the time Lalli attempted suicide dictated officers must take 

some reasonable measures to thwart a known, substantial risk 

that a pre-trial detainee will attempt suicide.” Id. at 105. 

“Rather,” we explained, 

Defendant Winslow argues he was not 

deliberately indifferent, and therefore did 
‐49‐

not violate Lalli’s rights because “the 

summary judgment record does not support 

finding a genuine issue as to whether 

Winslow actually knew of the risk [that 

Lalli would attempt suicide] or whether 

Winslow was deliberately indifferent to that 

risk.” Similarly, Defendant Escorsio argues 

she “was not deliberately indifferent to 

Lalli’s Fourteenth Amendment rights because 

she took some action to avert the risk of 

harm.” But these discussions “nowhere 

develop the argument that, even drawing all 

the inferences as the district court 

concluded a jury permissibly could, they are 

entitled to judgment as a matter of law.” 

Instead, Winslow’s arguments take issue with 

the district court’s factual determinations 

as to his knowledge of risk and his efforts 

-- or lack thereof -- to abate that risk. 

Similarly, Escorsio’s arguments dispute the 

court’s factual finding that she may have 

taken essentially no action to avert the 

risk Lalli would attempt suicide when she 

returned him to Cell 135. 

As we recently stated in Cady, these 

“fact-based challenge[s] would, of course, 

not defeat jurisdiction if . . . advanced in 

the alternative. But nowhere in the 

defendants’ brief does there appear any 

developed argument that the defendants are 

entitled to summary judgment even if the 

district court’s conclusions about the 

record were correct.” As such, we have no 

basis on which to exercise jurisdiction over 

whether Defendants violated Lalli’s clearly 

established rights through deliberate 

indifference to the risk that he would 

attempt suicide. 

Id. at 111 (alterations in original) (footnote omitted) 

(citations omitted). 
‐50‐

B. 

Our review of the defendants’ briefing before this 

court convinces us that their arguments suffer from the same 

infirmities as those of the defendants in Stella, Díaz, Cady, 

and Penn. In their recitation of the facts and substantive 

arguments, the defendants repeatedly ignore evidence, and 

reasonable inferences therefrom, on which the magistrate judge 

based her conclusion that there were genuine issues of material 

fact concerning whether the defendants’ actions were punitive 

and retaliatory. 

By way of example only, the defendants fail to 

acknowledge the direct evidence that Officer Rizzo and 

Major Allen both were using administrative segregation as a 

means of retaliating against Mr. Goguen for his filing of 

grievances and use of the courts.54 Moreover, with respect to 

the incident on June 23, the defendants never acknowledge three 

key pieces of evidence that point to the conclusion that 

                                                 

54 See R.83 (Goguen Dep.) at 62 (recounting Officer Rizzo’s 

statement that he would “‘do whatever it takes in my personal 

power to make sure you spend the rest of your time in A[-] 

pod’”); id. at 17 (relating Major Allen’s disruption of 

Mr. Goguen’s call with the federal magistrate judge and 

placement of Mr. Goguen in A-pod following Major Allen’s 

discovery that Mr. Goguen had been threatening officers with 

lawsuits). 
‐51‐

Mr. Goguen’s initial placement in administrative segregation was 

retaliatory: (1) Mr. Goguen testified that he did nothing to 

interfere with the cell search or provoke the officers involved, 

but it was Officer Gilblair who yelled and cursed at him; (2) 

the officers cited this (disputed) lack of cooperation as the 

reason for transferring Mr. Goguen to A-pod; and (3) the search 

took place the same day that Mr. Goguen testified against 

Officer Gilblair with respect to the complaint of a fellow 

inmate. The defendants also ignore evidence pointing to a 

retaliatory placement in administrative segregation following 

the dispute over the July 15 bunk assignments. The defendants 

repeat throughout their brief that Mr. Goguen refused 

Officer Rizzo’s order to take the top bunk. Mr. Goguen, 

however, explicitly refuted this in his deposition. Yet, the 

basis for Mr. Goguen’s disciplinary action -- and his placement 

in A-pod -- was his failure to obey an order. Finally, in 

addition to their failure to acknowledge critical evidence, the 

defendants’ brief explicitly questions the bases for some of the 

district court’s findings.55 Like the defendants in Cady, it is 

                                                 

55 See Appellants’ Br. 38–39 (“While the Recommended Decision 

stated that Allen had direct oversight or involvement related to 

one or more impositions of administrative segregation, Rec. 

Dec., p.45, there is no evidence to this effect.”); id. at 41 

   
‐52‐

clear that “the defendants’ briefing objects to the way the 

district court construed the facts.” 753 F.3d at 360. They 

make no “‘purely legal’ contentions” that we are able to 

separate from these factual assertions. Id. 

After Mr. Goguen raised the issue of our jurisdiction 

in his responsive brief, the defendants did acknowledge the rule 

that they could seek immediate review only if the district 

court’s judgment “‘turn[ed] on an issue of law.’”56 They 

maintained, however, that, “[i]f the denial of qualified 

immunity was based on factual issues, the decision ‘is still 

reviewable if qualified immunity is warranted on the plaintiff’s 

version of the facts together with facts that are not 

disputed.’”57

                                                                                                                                                             

(“The basis for the due process claim against Gilblair and 

Meunier is that they allegedly wrote false reports based on the 

cell search on June 23, 2011, that resulted in Goguen being put 

in administrative segregation. Rec. Dec., p.52. There is no 

evidence to support this allegation, though.”); id. at 48 n.6 

(“While the Recommended Decision states that the photographic 

evidence supports Goguen’s contention that one cannot watch a 

cell search from downstairs . . . , Rec. Dec., p.9, it is 

unclear how the court made this determination from this one 

photograph especially when it is unknown where Goguen’s cell was 

located.”). 

56 Reply Br. 6 (quoting Maldonado v. Fontanes, 568 F.3d 263, 267 

(1st Cir. 2009)). 

57 Id. (quoting Cruz-Gómez v. Rivera-Hernández, 444 F.3d 29, 33 

n.5 (1st Cir. 2006) (emphasis omitted)). 
‐53‐

The problem for the defendants is that, in their 

reply, they did not change tack, accept the district court’s 

factual findings, and make an argument based on those findings. 

Instead, they maintained that Mr. Goguen’s recitation of facts 

should be ignored because it relied, in large part, on the 

unsworn allegations set forth in his second amended complaint. 

It is true that Mr. Goguen’s recitation of facts has its own 

infirmities.58 The district court, however, did not rest its 

findings on Mr. Goguen’s unsworn allegations, but, instead, 

“looked to Goguen’s deposition to determine whether he ha[d] 

offered any sworn testimony to support his unsworn factual 

assertions.”59 Indeed, the defendants characterize many facts as 

                                                 

58 We agree with the defendants that unsworn allegations 

contained in a complaint, without more, are not enough to oppose 

a properly supported motion for summary judgment. See, e.g., 

Ruiz-Rosa v. Rullán, 485 F.3d 150, 156 (1st Cir. 2007). We 

similarly reject Mr. Goguen’s argument that we should accept the 

facts set forth in his second amended complaint because, “had 

Mr. Goguen understood the complicated civil rules, especially 

regarding summary judgment, he would certainly have styled his 

Second Amended Complaint as a Verified Complaint, thus muting 

Defendants’ refrain that his averments are unsupported by sworn 

testimony.” Appellee’s Br. 8. We have long held, and oft 

repeated, that “pro se status does not free a litigant in a 

civil case of the obligation to comply with procedural rules.” 

Ruiz Rivera v. Riley, 209 F.3d 24, 28 n.2 (1st Cir. 2000). 

59 Gilblair, 2013 WL 5407225, at *3.
‐54‐

being supported only by unsworn statements, when, in fact, they 

find support in Mr. Goguen’s deposition testimony.60

The Supreme Court held in Johnson, and we reiterated 

in Cady, that “a district court’s conclusion that a summary 

judgment record in a qualified immunity case raise[s] a genuine 

issue of fact as to whether the defendants were involved in the 

alleged events [is] not immediately appealable under the 

collateral order doctrine.” Cady, 753 F.3d at 358–59. 

Similarly, on an interlocutory appeal, we are not at liberty to 

reexamine a district court’s determination that there is a 

genuine issue of material fact as to a government actor’s 

motivation in taking specific actions. See Valdizán v. RiveraHernandez, 445 F.3d 63, 65 (1st Cir. 2006). As our discussion 

here demonstrates, “overlook[ing] this separability problem” 

would leave us mired in numerous factual disputes that we well 

may face again after trial. Cady, 753 F.3d at 359. Under such 

                                                 

60 Among these are allegations that, on June 18, 2011, Mr. Goguen 

both filed a witness statement in support of another inmate’s 

complaint against Officer Gilblair and filed his own grievance 

against Officer Gilblair, see R.83 (Goguen Dep.) at 47; that 

Officer Gilblair failed to return property, books, and legal 

papers that she had collected from Mr. Goguen, see id. at 49; 

and that Major Allen placed Mr. Goguen in A-pod following his 

telephone conference with the magistrate judge, see id. at 16–

17. 
‐55‐

circumstances, the collateral order doctrine does not allow, and 

concern for the wise use of judicial resources warns against, 

the exercise of appellate jurisdiction.61

                                                 

61 In their brief, the defendants urge that we should approach 

Officer Kelly differently because “[i]t appears the claims 

against Kelly were inadvertently left in this case.” 

Appellants’ Br. 53. We think that the constraints placed on our 

jurisdiction prevent our addressing this assertion here. 

According to the defendants, the magistrate judge concluded 

that “Kelly should be entitled to summary judgment because ‘the 

only thing that would keep Kelly in this case is the unsanitary 

cell episode, which was not exhausted administratively.’” Id. 

at 54 (quoting Goguen, 2013 WL 5407225, at *30). We do not 

believe that this is a fair reading of the magistrate judge’s 

report. The quote on which the defendants rely is part of her 

discussion of Mr. Goguen’s “Conspiracy” allegation. See Goguen, 

2013 WL 5407225, at *30 (observing that “the overall facts and 

circumstances would permit a finding of concerted action 

sufficient to infer an agreement among some of the defendants to 

deprive Goguen of his rights,” but that “the facts 

developed . . . do not warrant sweeping” other officers into the 

conspiracy and further noting that “the only thing that would 

keep Kelly in this case is the unsanitary cell episode, which 

was not exhausted administratively” (emphasis added)). At 

several other points in her opinion, however, the magistrate 

judge notes Officer Kelly’s involvement in the alleged 

retaliatory actions against Mr. Goguen. See id. at *25 (“Goguen 

claims violations of the First Amendment and the Sixth Amendment 

related to the right to access the court and counsel, based on 

the seizure of legal papers and books, denial of law library 

access and materials, and interference with communications with 

the court and with counsel, asserted against Defendants Allen, 

Bugbee, Gilblair, Jacques, Kelly, Maguire, Meunier, Plourd, 

Rizzo, and Swope. . . . [F]acts and circumstances related to 

throwing Goguen’s legal papers about, opening his mail, 

interrupting his conferences with the court, and so forth, are 

relevant to the core claims of imposing punishment on a pretrial 

detainee without due process of law and of retaliating against a 

   
‐56‐

                                                                                                                                                             

pretrial detainee for pursuing petitions in redress of 

grievances.” (emphasis added)); see id. at *27 (noting that the 

facts related to the “unsanitary cell” incident “form part of 

the facts and circumstances related to Goguen’s core due process 

claim against Meunier and his retaliation claim against Meunier 

and Kelly”). 

Although the evidence implicating Officer Kelly is not 

particularly well-developed in the record, we do note that the 

magistrate judge specifically said that there was a genuine 

issue of triable fact as to her role: 

As for the retaliation claim, . . . 

there is a genuine issue concerning those 

officers who supported or directed the 

imposition of administrative segregation on 

Goguen prior to completion of the due 

process procedures outlined in Wolff v. 

McDonnell, and the cumulative impact of 

disrupting court conferences, scattering 

legal papers throughout Goguen’s cell, 

imposing four-point shackles when Goguen 

accessed the library cart, and using 

unnecessary force. This claim is viable 

against Allen, Almeida, Bugbee, Gilblair, 

Kelly, Meunier, Plourd, and Rizzo. 

Id. at *32 (emphasis added). The argument that Officer Kelly 

should be granted summary judgment is therefore a matter most 

appropriately left to the district court in the course of 

further proceedings on remand. 

We note also that the defendants’ arguments with respect to 

Officer Kelly suffer from the same infirmities as their more 

general arguments: They do not acknowledge the sworn testimony 

in the record that supports the magistrate judge’s findings. 

See R.83 (Goguen Dep.) at 89–90 (describing Officer Kelly’s 

actions in taking Mr. Goguen’s legal material when he was going 

to meet with counsel). Because Officer Kelly’s arguments, like 

those of the other defendants, are fact-based, they are not 

properly before this court on interlocutory appeal. 
‐57‐

Conclusion 

The defendants have not come forward with any purely 

legal issues that call into question the district court’s denial 

of their motion for summary judgment on qualified immunity 

grounds. Consequently, we do not have jurisdiction over the 

defendants’ appeal. The appeal is dismissed for want of 

jurisdiction. 

APPEAL DISMISSED