UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Heath Chase

v. Civil No. 04-cv-486-JD

Opinion No. 2005 DNH 092

Peter Ash, et al.

O R D E R

Heath Chase and three other minimum security inmates were

involved in an incident at the New Hampshire State Prison farm on

November 5, 2004. Chase brought a civil rights action and sought

injunctive relief, alleging that prison staff, most of whose

names he did not know, used excessive force against him in the

course of that incident, confined him in inhumane conditions,

were deliberately indifferent to his serious medical needs,

wrongfully held him in the secured housing unit in violation of

due process, and retaliated against him because of his complaints

about violations of his constitutional rights. Officers Peter

Ash, Jonathan Makara, and Hormick were identified as part of the

group who allegedly retaliated against Chase. He also named the

warden, Bruce Catrell, in his official capacity, seeking only

injunctive relief from him. 

Ash, Makara, and Cattell move for summary judgment. Hormick

was previously dismissed from the suit. With his objection to

summary judgment, Chase moved for voluntary dismissal of all of

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his claims, without prejudice. The defendants object to the

motion for dismissal without prejudice.

I. Motion to Dismiss Claims without Prejudice

After the opposing party has served its answer or a motion

for summary judgment, the plaintiff can voluntarily dismiss

claims without prejudice only by leave of the court “upon such

terms and conditions as the court deems proper.” Fed. R. Civ. P.

41(a)(2). In deciding a motion under Rule 41(a)(2), the court

must consider “‘the defendant’s effort and expense of preparation

for trial, excessive delay and lack of diligence on the part of

the plaintiff in prosecuting the action, insufficient explanation

for the need to take a dismissal, and the fact that a motion for

summary judgment has been filed by the defendant.’” In re

Urohealth Sys., Inc., 252 F.3d 504, 505 (1st Cir. 2001) (quoting

Doe v. Urotheal Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000));

accord Guptill v. Martin, 228 F.R.D. 62, 65 (D. Me. 2005).

In this case, Chase identified and served only three

defendants, Ash, Makara, and Cattell. Defendant Hormick was

never served, and the claims against him were dismissed without

prejudice on May 9, 2005. Most of Chase’s claims are alleged

against Doe and Roe defendants who have not been identified or

served in the nineteen months that this case has been pending. 

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Because those defendants have not filed answers or motions for

summary judgment, having never been served, the claims against

them may be voluntarily dismissed without prejudice and without

leave of court by filing a notice of dismissal. Fed. R. Civ. P.

41(a)(1). In addition, given Chase’s failure to identify and

serve those defendants within a reasonable amount of time, the

claims against them may be dismissed without prejudice by the

court. See Figueroa v. Rivera, 147 F.3d 77, 83 (1st Cir. 1998). 

Therefore, the claims alleged against the Doe and Roe defendants

are dismissed without prejudice.

In support of his motion to voluntarily dismiss all of his

claims without prejudice, Chase explains that he filed suit “at a

time when he needed and requested an emergency temporary

restraining order due to ongoing retaliation within the prison’s

maximum security unit. Defendants moved plaintiff out of that

unit on the morning of the scheduled TRO hearing in this court.” 

Motion at 1. Chase states that discovery and the defendants’

motion for summary judgment, along with its supporting

documentation, “brought new and more detailed information to

light that may significantly narrow and focus plaintiff’s

claims.” Id. He suggests that he would not refile claims for

constitutionally deficient medical care or alleging that his

transfer to SHU violated due process. In addition, Chase

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represents that one of the other inmates involved in the November

5 incident, Corey Thomas, has contacted his counsel and would

like to file a joint complaint with Chase.

Ash, Makara, and Cattell object to dismissal of Chase’s

claims without prejudice on the grounds of delay and prejudice.

They represent that they responded to all of Chase’s discovery

requests by the end of August, 2005, which gave him all of the

information necessary to amend his complaint. They argue that

the year delay in filing the motion should not be excused. They

also contend that their attorneys have expended more than 175

hours in investigating and preparing this case. They assert that

a decision on their motion for summary judgment would narrow or

eliminate Chase’s claims. They object to Chase filing a joint

suit with Corey Thomas and point out that a third member of that

group, who is represented by the same counsel who represents

Chase, has filed a separate action arising from the farm

incident. The defendants ask for an award of their attorneys’

fees and costs if the court were to grant Chase’s motion.

Given the delay in moving for voluntary dismissal and the

pending motion for summary judgment, the court will first address

summary judgment. If any claims remain unresolved by summary

judgment, the court will consider whether to allow voluntary

dismissal without prejudice of the remaining claims.

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II. Motion for Summary Judgment

Chase sued Catell only in his official capacity, as warden

of the prison, and as to him, Chase sought a temporary

restraining order and preliminary injunction to require the

warden to move him to a minimum security unit in the prison. 

That claim was resolved on December 27, 2004, and was withdrawn. 

Chases’s claims against the Roe and Doe defendants are dismissed

without prejudice, as explained above. Therefore, the only

claims remaining in this case are Chase’s retaliation claims

against Ash and Makara in Count IV. Ash and Makara contend they

are entitled to summary judgment because there is no evidence

“that permits a reasonable inference that any alleged acts of

mistreatment are in any way connects [sic] to filing complaints

or grievances.” Mem. at 23.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

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See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255. 

Discussion

“Official reprisal for protected speech ‘offends the

Constitution [because] it threatens to inhibit exercise of the

protected right,’ Crawford-El v. Britton, 523 U.S. 574, 588, n.

10 (1998). . ., and the law is settled that as a general matter

the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions . . . for

speaking out, id., at 592; see also Perry v. Sindermann, 408 U.S.

593, 597 (1972) (noting that the government may not punish a

person or deprive him of a benefit on the basis of his

‘constitutionally protected speech’).” Hartman v. Moore, 126 S.

Ct. 1695, 1701 (U.S. 2006). To prove a retaliation claim, a

prisoner must establish: (1) that he engaged in constitutionally

protected conduct, (2) that the defendants took an adverse action

against him, and (3) that a causal connection exists between the

adverse action and the prisoner’s protected conduct in that the

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1Although Chase did not comply with LR 7.2(b)(2), the

defendants did not raise that issue and instead treated his

affidavit as his factual statement.

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defendants intended to retaliate or were motivated to retaliate

by the prisoner’s protected conduct. Morris v. Powell, 449 F.3d

682, 684 (5th Cir. 2006); Gill v. Pidlypchak, 389 F.3d 379, 380

(2d Cir. 2004); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001);

Thaddeus-X v. Blatter, 175 F.3d 378, 389 (6th Cir. 1999); Price

v. Wall, 428 F. Supp. 2d 52, 55 (D.R.I. 2006). 

In this case, Ash and Makara concede that Chase’s complaints

about treatment he received at the prison are entitled to First

Amendment protection. They contend that they are entitled to

summary judgment because Chase cannot show that they engaged in

any retaliatory actions against him. That is, they deny that

they engaged in any adverse actions as to Chase, and they deny

any retaliatory intent. 

Chase submitted his affidavit in support of his objection to

the defendants’ motion for summary judgment.1 In his affidavit,

Chase states generally that the retaliation he experienced

included dumping his food and juice when it was delivered,

interrupting his mail, shutting off his telephone calls, laughing

when he was talking to his girlfriend on the telephone, and

threatening him with physical harm for filing his administrative

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complaints. Chase states that Ash and Makara interfered with his

meals by pouring juice on his hand, dropping his food tray with a

snide comment, denying his requests for canteen items and giving

him unrequested items such as “Preparation H.” He states that he

did not receive many of the letters that were mailed to him by

his girlfriend, his mother, and other friends, and he believes

that Ash and Makara were involved with or responsible for the

interruption of his mail. He states that Ash and Makara twice

moved him without putting him in handcuffs, in violation of SHU

policy, and told him that he needed to stop seeing lawyers and

filing lawsuits and needed to drop his lawsuit. He also stated

that Ash and Makara followed him inside his cell and Ash said to

him: “‘[I]t could be very easy for you to just resist arrest

again.’” Aff. ¶ 43. Chase interpreted that incident as a

threat. The other incidents he describes involved “officers” or

“staff” who are not identified as either Ash or Makara.

Makara and Ash state in their affidavits that they had

nothing to do with Chase’s mail and were not aware of anyone else

tampering with his mail. They both deny ever disconnecting any

of his telephone calls. They both acknowledge that they might

have accidentally spilled juice when filling Chase’s cup but deny

any intentional spilling. They both deny the incidents Chase

describes as threatening and the comments that he says they made. 

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2Ash and Makara could have moved early in the case to

dismiss claims or clarify that the claims other than retaliation

were not brought against them. Their focus for summary judgment

should have been on the single claim against them. The claim

against Cattell was withdrawn within days of when the complaint

was filed and did not require a motion for summary judgment. 

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Chase’s statements about the specific conduct he ascribes to

Ash and Makara, taken in the light most favorable to Chase, could

constitute adverse retaliatory actions. See Morris, 449 F.3d at

685-86 (discussing quantum of retaliatory conduct necessary to

support claim). Their denials only establish disputed facts that

are material to the claim. Therefore, they are not entitled to

summary judgment on the retaliation claim against them.

Although the retaliation claim survives summary judgment, it

would appear to be inefficient to hold a trial on just that claim

in light of the disposition of Chase’s other claims. Further,

the defendants could have avoided the complex motion for summary

judgment and the delay in resolving the other claims if they had

moved expeditiously to resolve those claims.2 Therefore, the

retaliation claim in Count IV against Ash and Makara is dismissed

without prejudice. No attorneys fees or costs are awarded.

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Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (document no. 19) is denied. The plaintiff’s

motion for dismissal of his claims without prejudice (document

no. 26) is granted in part and denied in part. The plaintiffs’

claims are dismissed as follows: the claim for injunctive relief

against Bruce Cattell was previously withdrawn; all claims

against Officer Hormick were previously dismissed without

prejudice due to the plaintiff’s failure to serve him; all claims

against the Roe and Doe defendants are dismissed without

prejudice due to the plaintiff’s failure to identify and serve

those defendants within a reasonable time; the claim against

Peter Ash and Jonathan Makara is dismissed without prejudice

pursuant to Rule 41(a)(2).

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 17, 2006

cc: Mary E. Maloney, Esquire

Michael J. Sheehan, Esquire

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