UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Todd M. Horstkotte

v. Civil No. 08-cv-285-JL

Opinion No. 2010 DNH 058

Commissioner, New Hampshire 

Department of Corrections, et al.

OPINION AND ORDER

This civil rights case involves alleged retaliation by

correctional officers against an inmate for threatening to file

grievances. Plaintiff Todd M. Horstkotte, formerly an inmate at

the New Hampshire State Prison, brought this action against the

Commissioner of the Department of Corrections, the prison warden,

and various prison guards under 42 U.S.C. § 1983. He alleges

that the guards retaliated against him by placing him in the

dayroom, administering a strip search, and filing a disciplinary

report. This court has jurisdiction under 28 U.S.C. § 1331

(federal question).

The defendants have now moved for summary judgment. See

Fed. R. Civ. P. 56. Horstkotte, who is proceeding pro se, has

not objected. After reviewing the summary judgment record and

hearing oral argument, this court grants the motion. The

officers’ challenged actions were de minimis and thus

insufficient to support a retaliation claim. Moreover, under

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applicable First Circuit precedent, there is insufficient

evidence in the record to create a genuine issue of material fact

as to whether the officers acted with retaliatory intent. 

I. APPLICABLE LEGAL STANDARD

Summary judgment is appropriate where “the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c)(2). An issue is “genuine” if it may

reasonably be resolved in either party’s favor at trial, and

“material” if it has the capacity to sway the outcome under

applicable law. Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st

Cir. 2008) (quotations omitted). In making this determination,

the “court must scrutinize the record in the light most

flattering to the party opposing the motion, indulging all

reasonable inferences in that party’s favor.” Mulvihill v. TopFlite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). 

As noted, Horstkotte has not responded to the defendants’

motion for summary judgment. Under this court’s local rules,

where the non-moving party does not properly oppose the summary

judgment motion, “[a]ll properly supported material facts set

forth in the moving party’s factual statement shall be deemed

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admitted.” L.R. 7.2(b)(2); see also De Jesus v. LTT Card Servs.,

Inc., 474 F.3d 16, 20 (1st Cir. 2007). Summary judgment does

not, however, “automatically follow” from the lack of a response. 

Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d 97, 101 (1st

Cir. 2003). The court still must evaluate whether the moving

party’s submission meets the summary judgment standard. See Fed.

R. Civ. P. 56(e) (“If the adverse party does not . . . respond,

summary judgment, if appropriate, shall be entered against the

adverse party.”) (emphasis added).

Consistent with this approach, the following background

summary is based on the statement of facts in the defendants’

motion, which is supported by affidavits and other authenticated

prison records.1

II. BACKGROUND

On the morning of January 13, 2008 corrections officer

Matthew Smith was distributing medication to the inmates in the

Secure Housing Unit (SHU) of the New Hampshire State Prison,

While Horstkotte explained at oral argument that he 1

disagrees with aspects of the defendants’ factual statement, he

was afforded an opportunity to respond to the defendants’ motion

and chose not to do so. Horstkotte was also presumably aware of

the consequences of failing to respond to a summary judgment

motion, as this court expressly addressed the issue in a previous

suit he brought. See Horstkotte v. Comm’r, N.H. Dep’t of Corr.,

2009 DNH 190 (citing L.R. 7.2(b)(2)). 

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where Horstkotte was an inmate. At approximately 5:30 a.m.,

Horstkotte told Officer Smith that he had not received his

medication, and Officer Smith responded that Horstkotte’s

medication card was empty. At around 6:30 a.m., corrections

officer Brian Benard was performing a routine health and safety

check of the inmates during the last round of his shift. 

Horstkotte asked Officer Benard to check on the status of his

medication and told Officer Benard that he had already spoken to

another officer about the situation. Officer Benard responded

that it was the end of his shift and it was not his

responsibility, but that he would speak to the other officer

regarding the situation. Horstkotte then accused Officer Benard

of refusing him medical attention. 

After completing his rounds, Officer Benard checked the

medication room and confirmed that Horstkotte had already

exhausted his prescription. He returned to Horstkotte’s cell,

placed the empty card against the door grate and told Horstkotte

that no refills were available. Horstkotte insisted that he

should have received his medication because he had previously

given a refill slip to a nurse, and threatened to file a

grievance under Prison Policy and Procedure Directive (“PPD”)

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1.16. Officer Benard told Horstkotte that it was inappropriate 2

to use the threat of grievances to get what he wanted. 

Horstkotte continued to insist on receiving his medication and

became loud, disruptive, and belligerent, which triggered

additionally disruptive shouts of “shut up” from other inmates on

the tier trying to sleep. 

Another corrections officer, Ryan Flynn, overheard the

exchange between Officer Benard and Horstkotte, noticed that it

was escalating, and intervened. Officer Flynn recalled that

Horstkotte appeared “unstable, shaking and erratic, which [was]

not his typical behavior.” Aff. of Corrections Officer Ryan

Flynn ¶ 4. Officer Flynn overheard Horstkotte’s statements that

Officer Benard had engaged in misconduct and recalled his threats

to file grievances and have Officer Benard fired. To avoid any

further disruptions on the tier, Officer Flynn determined that it

was necessary to place Horstkotte in the dayroom for a short

“cooling off” period. In an affidavit citing the applicable

Policy and Procedure Directive, Warden Richard Gerry explained

that standard prison operating procedures authorize SHU staff to

bring inmates to a dayroom for a “cooling off” period when they

become agitated or disruptive. Aff. of Warden Richard Gerry ¶ 2. 

See Knowles v. N.H. Dep’t of Corr., Comm’r, 538 F. Supp. 2d 2

453, 458-59 (describing the prison’s three-level grievance

procedure as set forth in PPD 1.16). 

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Officer Flynn handcuffed Horstkotte and escorted him to the

dayroom. Officer Flynn gave Horstkotte the customary pre-strip

search warning and instructions, and conducted the search. At no

point did Horstkotte complain about being brought into the

dayroom or about the manner in which the strip search was

conducted. Warden Gerry further explained that standard

operating procedures under the applicable Policy and Procedure

Directive authorize a strip search of any inmate who has been

placed in a dayroom at the SHU, except when the inmate has been

brought into the dayroom for routine activities such as the use

of telephones or dayroom time. Gerry Aff. at ¶ 3. Prison staff

does not need prior permission from the warden to conduct a strip

search under these circumstances because all staff members at SHU

are under standing orders that any inmate brought to a dayroom

for non-routine activities should be strip searched. Gerry Aff.

at ¶ 3; see also PPD 5.22, IV(6)(B)(3). 

Horstkotte spent approximately one hour in the dayroom until

a supervisor, Corporal Robert Tschudin, determined that he had

calmed down and could be returned to his cell. Afterward,

Officer Flynn filed an incident report, and Officer Benard

prepared a disciplinary report against Horstkotte, charging him

with threatening staff and disrupting the orderly operation of

the prison. After a hearing, Horstkotte was found not guilty of

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both charges because they were not sufficiently documented,

though by virtue of his failure to object to the motion at bar,

Horstkotte does not contest the defendants’ assertion that he was

disruptive. No further disciplinary action was taken against

Horstkotte.

III. ANALYSIS

Horstkotte alleges that the defendants retaliated against

him for threatening to file grievances, thereby violating his

First Amendment right “to petition the Government for a redress

of grievances.” U.S. Const. amend. I. To prevail on a

retaliation claim, Horstkotte must show that “(1) his complaints

were protected activity under the First Amendment; (2) the

defendants took adverse action against him; and (3) there was a

causal connection between the protected activity and the adverse

action.” Nagle v. Warden, N.H. State Prison, 2009 DNH 195, 15;

see also Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008);

Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003); Mitchell v.

Horn, 318 F.3d 523, 530 (3d Cir. 2003); Thaddeus-X v. Blatter,

175 F.3d 378, 386-87 (6th Cir. 1999) (en banc); Cossette v.

Poulin, 573 F. Supp. 2d 456, 459 (D.N.H. 2008).

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A. Protected activity

The defendants do not dispute that Horstkotte was engaged in

a protected activity. This court therefore assumes, without

deciding, that Horstkotte had a First Amendment right to express

his intent to file grievances, satisfying the first element of

his retaliation claim. See Nagle, 2009 DNH 195, 15 (same

assumption made). Horstkotte’s claim nonetheless fails to

satisfy the other two elements.

B. Adverse action

As to the second element, Horstkotte must show that the

defendants took adverse actions against him that were more than

“de minimis” and “would chill or silence a person of ordinary

firmness from future First Amendment activities.” Morris v.

Powell, 449 F.3d 682, 684-85 (5th Cir. 2006) (quoting Crawford-El

v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996) (en banc)). 

“[C]ertain threats or deprivations are so de minimis that they do

not rise to the level of being constitutional violations.” 

Thaddeus-X, 175 F.3d at 398. Adverse acts will be considered de

minimis when they “cause an inmate only a ‘few days of

discomfort,’ impose ‘a [single] minor sanction,’ or impose an

otherwise constitutional restriction on the inmate.” Starr v.

Dube, 334 Fed. Appx. 341, 342 (1st Cir. 2009) (unpublished)

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(quoting Morris, 449 F.3d at 685-86) (alteration in original). 

“In making this determination, the court’s inquiry must be

‘tailored to the different circumstances in which retaliation

claims arise,’ bearing in mind that ‘[p]risoners may be required

to tolerate more . . . than average citizens before a

[retaliatory] action taken against them is considered adverse.’” 

Davis, 320 F.3d at 353 (quoting Dawes v. Walker, 239 F.3d 489,

493 (2d Cir. 2001)) (alteration in original). In his complaint,

Horstkotte did not allege that a specific incident was

retaliatory but instead referred to the entire sequence of events

on January 13, 2008. Whether viewed individually or taken

together, the disciplinary report, temporary placement in the

dayroom, and strip search do not constitute adverse actions. 

The defendants first argue that the disciplinary report

against Horstkotte does not constitute an adverse action. Our

court of appeals recently held that where disciplinary charges

are filed and ultimately dismissed against a prisoner, no

“reasonable fact-finder could conclude that inmates of ‘ordinary

firmness’ would be deterred from continuing to exercise their

constitutional rights.” Starr, 334 Fed. Appx. at 343; see also

Nagle, 2009 DNH 195, 16-17. Like the inmates in Starr and Nagle,

Horstkotte was found not guilty of the charges and no further

disciplinary action was taken against him. The dismissed

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disciplinary report would not deter an inmate of ordinary

firmness from exercising his First Amendment rights and fails to

satisfy the second element of the retaliation test.

The defendants also argue that Horstkotte’s brief placement

in the dayroom and resulting strip search do not constitute

adverse actions. Courts have held that strip searches, in

conjunction with other discipline may constitute adverse actions. 

See Brown v. Carr, No. C-08-170, 2008 WL 4613050, at *3 (S.D.

Tex. Oct. 15, 2008)(“[T]he retaliatory acts complained of, a

disciplinary case resulting in the loss of privileges, and an

intrusive strip search, are more than de minimis.”); Marvel v.

Snyder, No. 99-442, 2001 WL 830309, at *8 (D. Del. July 24, 2001)

(a strip search, a cell shakedown, removal from inmate job, and

transfer to a potentially more dangerous area of the prison could

“negatively sway a reasonable prisoner from pursuing redress in

the court”). Unlike in these cases, however, Horstkotte’s strip

search was not combined with any significant discipline, cell

shakedown, transfer, or job loss. 

Inmates are subjected to strip searches on a fairly routine

basis at the New Hampshire State Prison. When inmates at SHU are

brought to a dayroom for a “cooling off” period, prison policy,

as explained by Warden Gerry, requires them to be strip searched. 

PPD 5.22, IV(4)(d) & (6)(B)(3). While the applicable regulation

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recognizes that strip searches may be “annoying, irritating,

[and] time-consuming,” PPD 5.22, IV(6)(B)(3), the strip search

here is the type of de minimis act that causes an inmate “only a

‘few days [or less] of discomfort,’ impose[s] ‘a [single] minor

sanction,’ or impose[s] an otherwise constitutional restriction

on the inmate.” Starr, 334 Fed. Appx. at 342 (quoting Morris,

449 F.3d at 685-86). Given that “[p]risoners may be required to

tolerate more than . . . average citizens, before a [retaliatory]

action taken against them is considered adverse,” Davis, 320 F.3d

at 353, this strip search is not an adverse action. The court

here does not decide as a matter of law that no strip search,

standing alone, could constitute an adverse action. But under

this standard, and on this unrefuted record, L.R. 7.2(b)(2), the

court cannot say that the strip search of Horstkotte, either

standing alone or taken together with the dismissed disciplinary

action and brief placement in the dayroom, would deter a person

of ordinary firmness from exercising their constitutional rights. 

 

C. Causal connection

As to the third element of a retaliation claim--causation--

inmates “face a substantial burden” to show that retaliation is

“the actual motivating factor” for the adverse action. McDonald

v. Hall, 610 F.2d 16, 18 (1st Cir. 1979); see also Jackson v.

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Fair, 846 F.2d 811, 820 (1st Cir. 1988). Horstkotte must

demonstrate that the adverse acts would not have happened “but

for” the officers retaliatory motive. McDonald, 610 F.2d at 18. 

Because it is difficult to prove a retaliatory state of mind, the

plaintiff can introduce circumstantial evidence to establish

liability if it supports a reasonable inference of retaliation. 

See Beauchamp v. Murphy, 37 F.3d 700, 711 (1st Cir. 1994)

(Bownes, J., dissenting); Ferranti v. Moran, 618 F.2d 888, 892

(1st Cir. 1980). Such evidence may include the chronology of

events or temporal proximity between the exercise of a

plaintiff’s right and the alleged retaliatory act. LaFauci v.

N.H. Dep’t of Corr., 2005 DNH 029, 21-22 (citing Ferranti, 618

F.2d at 892; McDonald, 610 F.2d at 18); see also Colon v.

Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). “At the summary

judgment stage, however, a bare allegation of temporal proximity

ordinarily will not be sufficient by itself to prove improper

motivation if the defendant has provided a legitimate explanation

for the challenged action.” LaFauci, 2005 DNH 029, 22; see also

Layne v. Vinzant, 657 F.2d 468, 476 (1st Cir. 1981) (“The mere

chronology alleged in the complaint, while sufficient to

withstand a motion to dismiss, cannot get plaintiff to the jury

once defendants have produced evidence of a legitimate reason.”);

McDonald, 610 F.2d at 18-19. “[I]n cases where elusive concepts

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such as motive or intent are at issue, summary judgment may be

appropriate if the nonmoving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation.” 

Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009).

Based on this record, no reasonable fact-finder could

conclude that the officers acted with retaliatory intent when

they moved Horstkotte into the dayroom, strip searched him, and

filed a disciplinary report. Despite a close temporal proximity

between Horstkotte’s protected act and the alleged retaliatory

behavior, the defendants have provided a legitimate explanation

for their actions. By all accounts, it appears that Horstkotte

had become visibly upset after not receiving his medication. The

officers described his behavior as “belligerent” and by the time

that Officer Flynn intervened, the exchange between Horstkotte

and Officer Benard had become animated. Also, the exchange

occurred very early in the morning when many of the other inmates

were sleeping, and some began yelling “shut up” after being

awoken by the disturbance. When inmates become disruptive on the

tier it is common for officers to bring them into a dayroom for a

“cooling off” period. Gerry Aff. ¶ 2. Part of the process of

bringing an inmate into the dayroom for a “cooling off” involves

administering a strip search. Officers do not need prior

permission to conduct these strip searches because all staff

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members at the SHU are under standing orders that any inmate

brought into a dayroom for non-routine activities should be strip

searched. Gerry Aff. at ¶ 3; see also PPD 5.22, IV(6)(B)(3) 

Thus, it was not merely Horstkotte’s threats to file

grievances that motivated the officers. Instead, it was the

combination of Horstkotte’s disruptive behavior, his insistence

in getting his medication, and the fact that he was causing a

disturbance among the other inmates that motivated the officers

to act the way they did. This explanation is supported by the

summary judgment record presented by the defendants, and

Horstkotte has not objected to this record, much less refuted it. 

Based on the defendants’ explanation and because Horstkotte has

not offered any evidence that might give rise to an inference of

discriminatory intent, the causation element of his retaliation

claim fails as a matter of law. 

IV. CONCLUSION

For the foregoing reasons, the defendants’ motion for

summary judgment is GRANTED. The clerk shall enter judgment 3

accordingly and close the case.

Document no. 19. 3

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SO ORDERED.

 

Joseph N. Laplante

United States District Judge

Dated: April 2, 2010

cc: Todd M. Horskotte, pro se

Danielle L. Pacik, Esq.

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