UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Nicholaus Samora

v. Civil No. 07-cv-79-JM

Angela Poulin, et al.

O R D E R

Pro se plaintiff Nicholaus Samora brought this civil rights

action, pursuant to 42 U.S.C. § 1983, claiming defendants

retaliated against him for exercising his First Amendment rights. 

Defendants Angela Poulin, Paul Fortier, Dennis Cox and Larry

Blaisdell are employees at the New Hampshire State Prison’s

Northern Correctional Facility (“NCF”); defendant Christopher

Kench is a captain in the Office of the Commissioner of the New

Hampshire Department of Corrections (“NHDOC”). Before the court

is defendants’ motion for summary judgment (document no. 43), to

which plaintiff has not objected. For the reasons set forth

below, defendants’ motion is granted. 

Background

On or around January 12, 2007, plaintiff provided another

NCF inmate with an affidavit and attached exhibits that described

Case 1:07-cv-00079-JM Document 47 Filed 07/15/08 Page 1 of 14
1By providing the documents without obtaining permission,

plaintiff had violated PPD 7.12, III. D, which prohibits an

inmate from assisting another inmate with legal work without the

warden’s approval. See Defs.’ Mot. for Summ. J., Ex. B. 

Although plaintiff had been charged with giving something of

value, in violation of Rule 52.B, because what he gave was

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conditions and problems at NCF which that inmate wanted to use in

a civil rights action against the NCF. That other inmate

attempted to obtain copies of the affidavit and exhibits but

defendant Poulin, who works in the NCF library, refused to make

them, because the exhibits belonged to plaintiff and prison

policy proscribed copying “[d]ocuments that involved other

inmates.” See Defs.’ Mot. for Summ. J., Ex. C, NHDOC Policy and

Procedure Directive (“PPD”) 7.42, IV, B.2. Defendant Poulin

confiscated the exhibits and charged plaintiff with violating

Inmate Manual Rule 52.B, which prohibits inmates from giving or

loaning one another anything of value. See Compl., Ex. 2. 

After a disciplinary hearing on February 6, 2007, held

before defendant Fortier, plaintiff was found guilty of violating

Rule 52.B, because he admitted he gave the documents to the other

inmate as part of the affidavit he had provided. See id., Ex.

10. The evidence relied on to make that determination also

included a finding that plaintiff had provided the materials

without permission from any NCF staff member. See id.1. 

Case 1:07-cv-00079-JM Document 47 Filed 07/15/08 Page 2 of 14
evidence for another inmate’s legal action, defendants also found

plaintiff had violated PPD 7.12, III, D. 

3

Plaintiff was sentenced to 10 hours of extra duty time and 10

days loss of canteen privileges, which was suspended for 90 days.

Plaintiff appealed that finding, which was affirmed by

defendant Cox, a sergeant major at NCF, on February 7, 2007. 

Plaintiff next appealed to the NCF warden, defendant Blaisdell,

and finally to defendant Kench, both of whom affirmed the

conviction because plaintiff had not obtained approval from the

warden before providing the affidavit. See Compl., Exs. 6 & 7. 

In affirming the violation finding, defendant Blaisdell explained

“reasonable requests to provide a legitimate affidavit to another

inmate will be reviewed and approved if legitimate. You have

never asked, hence not had approval to do this.” Compl., Ex. 6. 

He further explained that the confiscated documents that violated

Rule 52.B were the exhibits, not the affidavit. See id., Ex. 7.

 Throughout his disciplinary process, plaintiff argued he was

retaliated against for exercising his constitutional right to

provide truthful testimony. After exhausting the grievance

procedures, plaintiff brought this action, asserting the same

claim. 

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Standard of Review

Summary judgment is appropriate only “if 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). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). A material fact is one “that might affect

the outcome of the suit.” Id. at 248. In ruling on a motion for

summary judgment, the court construes the evidence in the light

most favorable to the nonmovant. See Navarro v. Pfizer Corp.,

261 F.3d 90, 94 (1st Cir. 2001). The party moving for summary

judgment “bears the initial responsibility of . . . identifying

those portions of [the record] which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). 

Once the moving party has met its burden, the burden shifts

to the nonmovant to “produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

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verdict for it; if that party cannot produce such evidence, the

motion must be granted.” Ayala-Gerena v. Bristol Myers-Squibb

Co., 95 F.3d 86, 94 (1st Cir. 1996) (citing Celotex, 477 U.S. at

323; Anderson, 477 U.S. at 249). Neither conclusory allegations,

improbable inferences, nor unsupported speculation are sufficient

to defeat summary judgment. Carroll v. Xerox Corp., 294 F.3d

231, 236-37 (1st Cir. 2002). 

In order to “properly oppose” a motion: 

an adverse party may not rest upon the mere

allegations or denials of the adverse party’s

pleading, but the adverse party’s response,

by affidavits or as otherwise provided in

this rule, must set forth specific facts

showing that there is a genuine issue for

trial. 

Fed. R. Civ. P. 56(e). In addition, this Court’s local rules

provide that: 

All properly supported material facts set

forth in the moving party’s factual statement

shall be deemed admitted unless properly

opposed by the adverse party. 

United States District Court District of New Hampshire Local Rule

(“LR”) 7.2(b)(2). Plaintiff has failed to comply with the

affidavit requirements in Fed. R. Civ. P. 56 (c) & (e), and the

requirement in LR 7.2(b) that he provide “a short and concise

statement of material fact in opposition to the motion for

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summary judgment.”

When, as is the case here, the nonmoving party fails to

object or otherwise provide any documentation to refute the

moving party’s properly supported statement of material facts,

those facts must be accepted as true. See LR 7.2(b)(2). The

entry of an unopposed summary judgment motion does not

automatically give rise to a grant of summary judgment, however,

because the moving party still bears the burden of demonstrating

no genuine issue of material fact exists on any claim or defense

it is asserting. See Cordi-Allen v. Halloran, 470 F.3d 25, 28

(1st Cir. 2006) (citing authority); see also Aguiar-Carrasquillo

v. Agosto-Alicea, 445 F.3d 19, 25 (1st Cir. 2006) (same); Fed. R.

Civ. P. 56 (c) & (e). The district court must still review the

merits of the case in light of the record before it, to determine

whether summary judgment is appropriate. See AguiarCarrasquillo, 445 F.3d at 25.

Discussion

This suit raises a single claim based upon the alleged

retaliation plaintiff endured because he exercised his First

Amendment right to provide testimony in another inmate’s legal

action. Plaintiff contends defendant Poulin retaliated against

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2Plaintiff asserted his supervisory liability claim against

defendant Fortier, too; however, in the preliminary review of his

complaint, the claims against Fortier were construed to be

limited to the retaliation claim and the supervisory liability

claims were limited to Cox, Blaisdell and Kench. 

7

him by “willfully and maliciously . . . issuing a false

disciplinary report,” Compl. ¶ 10, which the remaining defendants

“authoriz[ed], condon[ed], and/or tacitly approv[ed]” by

affirming defendant Poulin’s disciplinary report. See Compl. ¶

27. Defendants argue on summary judgment (1) that plaintiff has

failed to set forth a prima facie claim for retaliation, (2) that

they are entitled to qualified immunity even if plaintiff has

made his claim, (3) that plaintiff’s request for injunctive

relief is moot, and (4) that plaintiff’s claims for supervisory

liability against defendants Cox, Blaisdell and Kench2 fail. 

Each argument is addressed below.

(1) Prima Facie Retaliation Claim 

 To show retaliation, plaintiff must demonstrate that he

engaged in constitutionally protected conduct, which prompted

adverse action by defendants and which action was taken with the

intention of deterring him from exercising that constitutional

right. See Ferranti v. Moran,618 F.2d 888, 891-92 (1st Cir.

1980) (finding § 1983 claim where plaintiff alleged interference

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3At the preliminary injunction stage of this litigation,

plaintiff had sought to prevent continued enforcement of the

regulations, which focused the analysis on the regulatory

language rather than the resulting adverse action. Although I

previously concluded that the regulations plaintiff was found to

have violated were overly broad and constituted an exaggerated

response to legitimate penological goals and institutional safety

concerns, see Order at 22-23, the record reflects that defendants

have amended those regulations in response to that finding. See

Defs.’ Mot. for Summ. J., Exs. E, F & G. 

8

with inmate’s efforts to access the courts); Oropallo v. Parrish,

No. 93-1953, 23 F.3d 394, 1194 WL 168519, at *4 (1st Cir. May 5,

1994) (explaining how conduct done in retaliation for exercising

First Amendment rights is actionable under § 1983); Mitchell v.

Horn, 318 F.3d 523, 530 (3rd Cir. 2003). As has been discussed

already in my preliminary review of the complaint and in my

analysis of plaintiff’s request for preliminary injunctive

relief, plaintiff’s provision of the affidavit and exhibits was

protected by the First and Fourteenth Amendment rights to free

speech, to petition the government and to access the courts. See

Samora v. Poulin, et al., no. 07-79-JM, Report and Recommendation

dated May 8, 2007 (“R&R”), at 8-12; see also Order dated Aug. 28,

2007 (“Order”), at 16-23. These prior rulings also discussed the

adverse action taken against plaintiff for having exercised his

rights. See id.3 The critical issue before me at this juncture

is whether the disciplinary action in question was taken to

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4In addition to the exhibits and affidavit attached to

defendants’ Motion for Summary Judgment, I consider the testimony

given at the hearing on plaintiff’s motion for a preliminary

injunction, held on June 6, 2007. See Defs. Mot. for Summ. J.,

Ex. A. 

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retaliate against plaintiff for having exercised his

constitutional right to provide testimonial evidence, so as to

deter such conduct in the future, or whether defendants in good

faith intended to enforce and uphold the prison regulations in

effect at the time. 

The undisputed facts demonstrate the following.4 When

defendant Poulin was asked to copy plaintiff’s affidavit, she

scanned the document to ensure it complied with prison

regulations. As Poulin understood NHDOC rules, plaintiff was

allowed to provide the affidavit, which is why she did not take

that, but could not give his personal documents to another

inmate, which is why the exhibits were confiscated. She charged

plaintiff with violating Rule 52.B, which proscribes the giving

or loaning of anything of value to another inmate. Defendant

Poulin explained that she was not informed that plaintiff’s

documents were exhibits to the affidavit, that she does not make

that determination on her own, and that she knew it was against

prison policy for one inmate to possess property of another, to

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have documents involving another inmate copied, or to assist

another inmate with his legal work without approval from the

warden. Based on her testimony, I find that defendant Poulin

was, in good faith, trying to enforce prison regulations as she

understood them.

The record also demonstrates that both defendants Fortier

and Cox found plaintiff guilty of violating the prison regulation

against loaning or giving something of value to another inmate,

Rule 52.B, because plaintiff admitted he had done that. Fortier

testified that he understood the rule against providing legal

assistance without the warden’s approval included the sharing of

legal work. Defendant Cox also explained that he believed three

of the confiscated documents contained sensitive information that

could be used by other inmates to jeopardize plaintiff’s

security. Both defendants declined to consider plaintiff’s

arguments, (I) that the exhibits were properly appended to an

affidavit that plaintiff had a constitutional right to give to

another inmate for use in that inmate’s lawsuit and, therefore,

he did not need the warden’s approval to do so, and (ii) that

this court had previously opined that the proscription against

copying any document that involves other inmates, PPD 7.42, IV,

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B.2, was overly broad. Defendants Fortier and Cox focused on the

rule violations plaintiff had committed, and refused to alter

that finding based on these other factors. The record clearly

shows that plaintiff had violated Rule 52.B and had not obtained

permission to provide the legal assistance, which also violated

PPD 7.12, III, D. Because the exhibits involved plaintiff and

were being given in violation of PPD 7.12, III, D, copying the

documents was against PPD 7.42, IV, B.2. The undisputed evidence

demonstrates that defendants Fortier and Cox based their findings 

on these violations, not on an intention to punish plaintiff for

exercising a constitutional right, as is required to prove

retaliation. 

Similarly, defendants Blaisdell and Kench affirmed the

guilty disciplinary finding because plaintiff had provided the

affidavit and exhibits without obtaining the requisite approval,

which violated prison rules. Blaisdell provided testimony that

explained the security concerns undergirding the restrictions on

loaning or giving property, which can give rise to a barter

system within the prison, made problematic by the potential for

strong-arming, extortion, or other coercive behavior. He also

explained that the need for the warden’s approval before legal

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assistance can be given is designed to thwart potential security

risks and to ensure the documents are being used for a legitimate

purpose. Blaisdell specifically testified that he does not

evaluate the content or necessity of an affidavit, but reviews

the document only to ascertain that it is what it purports to be. 

Finally, the evidence showed that some of the confiscated

documents contained sensitive information about plaintiff’s

incarcerating offense and his mental and medical health history

that, if known by certain inmates, could create safety concerns

for plaintiff.

Plaintiff submitted neither an affidavit nor a refutation of

defendants’ statement of material facts. As a consequence, the

facts as stated by these defendants are deemed admitted. See LR

7.2(b)(2); see also Fed. R. Civ. P. 56(c). Plaintiff has not

made a prima facie claim of retaliation, and defendants are

entitled to summary judgment on the single claim asserted here.

(2) Remaining Defenses

The remaining defenses need only be summarily addressed,

since plaintiff has failed to make a prima facie showing of

retaliation based on the undisputed record. First, there is no

evidence that the right to provide testimonial evidence in

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another inmate’s legal proceedings was so clearly established

when the events unfolded here that a reasonable prison official

in defendants’ shoes should have known that plaintiff could do so

without complying with prison rules and regulations that

controlled the exchange of property or other things of value. To

the contrary, plaintiff’s right may be reasonably restricted to

advance the legitimate penological goals of the NHDOC. Even if

plaintiff had made a prima facie case here, defendants would be

entitled to the defense of qualified immunity. See Whitfield v.

Melendez-Rivera, 431 F.3d 1, 6-7 (1st Cir. 2007) (stating test

for qualified immunity defense). Second, based on the facts that

demonstrated defendants did not intend to violate plaintiff’s

constitutional rights when they enforced the prison rules and

regulations implicated here, there is also no evidence that

defendants Cox, Blaisdell or Kench intentionally or maliciously

disregarded plaintiff’s constitutional rights when they upheld

the prison regulations plaintiff was found to have violated, or

that they otherwise abused their position of authority in

deliberate indifference to plaintiff’s constitutional rights, to

support a finding of supervisory liability. See id. at 14

(describing contours of supervisory liability under § 1983). 

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Third, any claim for injunctive relief is moot, because plaintiff

is no longer incarcerated and the challenged regulations have

been amended. The record readily demonstrates that all claims

against defendants fail.

Conclusion

The motion for summary judgment (Document no. 43) is

granted. The clerk is ordered to enter judgment accordingly and

to close the case.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 15, 2008

cc: Nicholaus Samora, pro se

 Deborah B. Weissbard, Esq.

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