UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Timothy M. O’Mara,

Plaintiff

v. Civil No. 08-cv-51-SM

Opinion No. 2009 DNH 172

David Dionne; Carl Brown;

Jeremy Menec; Tony Sawyer;

William McDougall; Willie Scurry;

William Raymond; James O’Mara,

individually, and as Superintendent

of the Hillsborough County

Department of Corrections; and

Hillsborough County Department

of Corrections,

Defendants

O R D E R

Pro se plaintiff Timothy O’Mara challenges the conditions of

his confinement as a pre-trial detainee in the Hillsborough

County House of Corrections. 42 U.S.C. § 1983. His case

consists of: (1) a Fourteenth Amendment claim alleging inhumane

cell conditions; (2) a Fourteenth Amendment claim challenging the

process by which he was placed in administrative segregation; and

(3) related municipal-liability claims against the Hillsborough

County Department of Corrections under the doctrine established

in Monell v. Department of Social Services, 436 U.S. 658 (1978). 

Before the court is defendants’ third motion for summary

judgment. Plaintiff objects. For the reasons given, defendants’

summary judgment motion is granted.

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Summary Judgment Standard

A summary judgment motion should be granted when the record

reveals “no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” FED.

R. CIV. P. 56(c). “The object of summary judgment is to ‘pierce

the boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’ ” Dávila

v. Corporación de P.R. para la Diffusión Pública, 498 F.3d 9, 12

(1st Cir. 2007) (quoting Acosta v. Ames Dep’t Stores, Inc., 386

F.3d 5, 7 (1st Cir. 2004)). “[T]he court’s task is not to weigh

the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Noonan v.

Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and

internal quotation marks omitted). When ruling on a party’s

motion for summary judgment, a trial court “constru[es] the

record in the light most favorable to the nonmovant and

resolv[es] all reasonable inferences in [that] party’s favor.” 

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

(citing Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d

32, 38 (1st Cir. 2002)).

Background

The relevant factual and procedural background is set out in

the court’s recent summary judgment order (document no. 61). 

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Discussion

A. Cell Conditions

O’Mara first claims that defendants “served [him] meals on

food trays that were rusted, cracked and filled with contaminated

water, mold and mildew [and that] after eating food served on

these trays, O’Mara allegedly experienced digestive problems,

stomach pain, diarrhea and headaches.” (Report & Recommendation

(document no. 10), at 12.) Defendants argue that they are

entitled to summary judgment on O’Mara’s cell-conditions claim

because the food-tray allegations are insufficient, as a matter

of law, to support a conditions-of-confinement claim, and because

the undisputed factual record demonstrates that O’Mara did not

suffer from, or complain about, physical symptoms resulting from

moldy food trays. O’Mara does not address the food-tray issue in

his objection to summary judgment. Defendants’ second argument

is dispositive.

Defendants have produced O’Mara’s entire Department of

Corrections medical record. While he made liberal use of the

health care services available to him, his records include only

one reference that might be construed as related to the food-tray

issue — a January 2, 2008, Health Services Request form in which

he complained: “I’m having dizzy spells, nausea, throwing up,

sweats, I feel very weak, hands shaky, room spins when I lay on

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my back. Headache (left side).” (Defs.’ Third Mot. Summ. J.,

Ex. E (document no. 62-8), at 41.) But, plaintiff has produced

no evidence of any causal connection between his physical

complaints and the food-tray conditions alleged. In short, there

is no triable issue of fact concerning his allegation that he was

sickened by contaminated food trays. Given the undisputed

factual record, defendants are entitled to judgment as a matter

of law on O’Mara’s conditions-of-confinement claim.

B. Placement in Administrative Segregation

O’Mara’s second ground for relief is a “Fourteenth Amendment

due process claim[ ] arising from O’Mara’s confinement in

administrative segregation.” (Report & Recommendation, at 35.) 

The Magistrate Judge further described that claim:

The hearing and processes employed by defendants

allegedly failed to provide O’Mara with due process

prior to being classified to administrative

segregation. Afterwards, O’Mara allegedly was denied

any right to appeal. He further claims that defendants

placed him in administrative segregation in reprisal

for his filing of a civil action against them and,

therefore, that their actions were not impartial.

(Id. at 29 (emphasis added).) Defendants argue that they are

entitled to summary judgment on O’Mara’s due-process claim

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1 In so arguing, defendants contend that because placement

in administrative segregation was not a punishment, O’Mara was

not entitled to the incidents of due process outlined in the

court’s previous order and described in Wolff v. McDonnell, 418

U.S. 539 (1974). It is not necessary to decide that legal issue

in order to resolve this case.

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because, in essence, they provided O’Mara even more process than

he was due under the circumstances.1 

While the magistrate judge, construing the pro se complaint

liberally, identified pre-hearing process as an issue in this

case, plaintiff conceded in open court that he is not complaining

about a lack of pre-hearing notice. And, in any event,

defendants have produced a Notice of Classification Hearing

provided to O’Mara on February 14, 2008, five days before his

classification hearing, (see Defs.’ Mot. Summ. J., Ex. D

(document no. 62-6), which plainly meets the notice requirement

described in Wolff, see 418 U.S. at 564. O’Mara complains,

instead, about an alleged denial of his right to appeal the

February 19, 2008, classification decision. 

There are several problems with O’Mara’s claim. First,

while the right to appeal a classification decision is described

in the Hillsborough County Department of Corrections Inmate

Handbook (see Defs.’ Renewed Mot. Summ. J. (document no. 54), Ex.

G., at 7), and the Deparatment’s Policies and Procedures (see

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Defs.’ Third Mot. Summ. J., Raymond Aff., Attach. § VI), that

right does not appear to be one of constitutional dimension. See

Wolff, 418 U.S. at 564-71. Second, it is undisputed that O’Mara

did, in fact, appeal the February 19 decision, and that his

appeal was granted in part. Accordingly, in his objection to

summary judgment, O’Mara abandons the argument that he was denied

any right to appeal, but argues, instead, that he was apprised of

that right in an untimely fashion. But, the right to appeal

classification decisions is set out in the Inmate Handbook and

so, O’Mara had at least constructive notice of his appeal right

long before his classification hearing. In sum, the undisputed

factual record demonstrates that O’Mara received all the process

he was due, if not more. Thus, defendants are entitled to

judgment as a matter of law on O’Mara’s due-process claim.

C. Claim Three: Monell Liability

Because the individual defendants have prevailed on all of

the claims against them, the Hillsborough County Department of

Corrections is necessarily entitled to judgment as a matter of

law on O’Mara’s Monell claim.

Conclusion

For the reasons given, defendants’ third motion for summary

judgment (document no. 62) is granted. The clerk of the court

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shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

November 9, 2009

cc: Timothy M. O’Mara, pro se

John A. Curran, Esq.

Elizabeth L. Hurley, Esq.

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