Stow v. Horan

September 27, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1102

WESTON J. STOW,

Plaintiff, Appellant,

v.

DAVID HORAN, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Cyr, Circuit Judges.

Weston J. Stow on brief pro se.

Jeffrey R. Howard, Attorney General, and William C. McCallum,

Assistant Attorney General, on brief for Michael Cunningham appellee.
David Horan, Assistant County Attorney, and Peter McDonough,

Assistant County Attorney, on brief for David Horan and James O'Mara
and Hillsborough County.

Per Curiam. Appellant Weston Stow appeals the

district court's grant of summary judgment in appellees'

favor. We affirm in part and remand for further proceedings.

I. Background

We describe the facts in the light most

advantageous to Stow. See Nereida-Gonzalez v. Tirado-

Delgado, 990 F.2d 701, 702 (1st Cir. 1993). In September

1990, Stow, who was serving a prison term in Massachusetts,

was transported to a county jail in New Hampshire under the

Interstate Agreement on Detainers (IAD) to stand trial on

charges pending against him in that state.1 He was tried

and convicted on those charges in December 1990, and was

returned to county jail pending sentencing. On April 1,

1991, James O'Mara, who was superintendent of the county

jail, obtained Stow's transfer to the New Hampshire State

Prison (NHSP). In a letter to an NHSP official, O'Mara

explained that Stow was "facing the longest sentence handed

[down] in the history of the Hillsborough County Superior

Court for a non-murder case. In addition, inmate Stow is

involved in civil litigation with the former Superintendent

[, which] presents a minor problem. If inmate Stow were to

be injured during a forced move, he could allege that the

1. The IAD is codified at N.H. Rev. Stat. Ann. 606-A:1.
State prisoners may file section 1983 suits based on alleged
violations of the IAD, as codified in state law. See Cuyler

v. Adams, 449 U.S. 433, 442, 450 (1981).

treatment was a result of this suit. It would be most

helpful if this situation could be avoided." Stow was then

transferred to NHSP without being given prior notice or a

statement of reasons for his transfer.

On May 3, 1991, a New Hampshire court sentenced

Stow to 40-80 years in prison, to be served consecutive to

his Massachusetts sentence. He then appealed his conviction.

On June 14, 1991, state prison officials told him to prepare

for his return to Massachusetts, but later that day he was

told that he would not be returned to Massachusetts. He

discovered subsequently that county prosecutor David Horan

had instructed prison officials to keep him in New Hampshire.

The asserted ground for doing so was apparently the state's

concern that, if Stow's appeal were successful, Stow would

contest future attempts to return him to New Hampshire for

retrial and seek dismissal of the indictment against him

under the IAD.2

In July and August, Stow wrote to O'Mara, advising

him that he was being illegally detained in New Hampshire and

that it was O'Mara's responsibility to have him transported

back to Massachusetts after his sentencing. In August and

September, Stow submitted several inmate request slips to

2. Under what is known as an "anti-shuffling" provision, a
prisoner may obtain dismissal of the indictment against him
in a receiving state if the state has not tried him on the
charges against him before returning him to the sending
state. See N.H. Rev. Stat. Ann. 606-A:1, Art. IV(e).

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NHSP Warden Michael Cunningham, requesting clarification of

his situation, and stating that the county attorney had said

that Cunningham was responsible for preventing his return to

Massachusetts.

While these events were unfolding, Stow filed the

present actions against O'Mara and Horan, seeking declaratory

relief and compensatory and punitive damages under 42 U.S.C.

1983.3 His claims were two-fold, relating first to the

state's failure to return him to Massachusetts, and second to

his transfer to NHSP from the county jail. Stow alleged that

Horan had prevented Stow's return to Massachusetts in June

1991, thereby violating Stow's rights under the IAD and

various provisions of the Federal Constitution; that he

should have been returned to Massachusetts after he was

sentenced on May 3, 1991;4 and that O'Mara had not returned

him to Massachusetts despite Stow's requests that he do so.

With respect to his second claim, Stow asserted that

transferring him to NHSP "without notice, without official

3. In his original complaint against Horan, Stow sought
injunctive relief as well, but a consolidated complaint
omitted that claim. Later, the court denied Stow's
separately filed motions for a temporary restraining order
and a preliminary and permanent injunction.

4. In his submissions below, Stow argues that he should have
been returned either after his conviction in December 1990 or
at the latest after he was sentenced. We confine our
description of the facts and our analysis to the allegations
in Stow's complaint.

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reason" in itself violated his rights and, moreover, occurred

in retaliation for his filing of a civil complaint against

county jail administrators and for suggesting that he would

file additional complaints if certain alleged constitutional

violations continued. In an amended complaint, Stow claimed

that a county employee had told him that he had been

transferred because he had filed the lawsuit. What is more,

Stow averred that he had consistently queried county jail

authorities about alleged civil rights violations at the

jail, and that he had done so most intensely in the time

period immediately preceding his transfer. Later, Stow added

Cunningham as a defendant, seeking declaratory relief and

damages. Stow alleged that he had informed Cunningham that

he was being held at NHSP in violation of the IAD and that he

wanted to be returned to Massachusetts, but that Cunningham

had refused to act.

Subsequently, the parties filed motions for summary

judgment.5 The court granted Cunningham's motion. It found

that Cunningham had absolute immunity deriving from the

common law immunity accorded wardens and others who carry out

judicial orders, pointing to a state decision denying Stow

habeas relief on the basis of the alleged IAD violation. See

Stow v. Horan, 829 F. Supp. 504, 507 (D.N.H. 1993). The

5. Cunningham filed a motion to dismiss, which he
supplemented by affidavit after the district court directed
the parties to submit summary judgment materials.

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court also granted summary judgment for Horan and O'Mara,

determining that Horan had qualified immunity6 and that

O'Mara was protected by qualified immunity for the period

preceding the state habeas decision and by absolute immunity

for the subsequent period. Concluding that New Hampshire law

conferred no pre-transfer procedural rights on Stow, the

court dismissed Stow's claims relating to his transfer to

NHSP.

II. Discussion

A. Alleged IAD Violations

Stow claims first that the court erred in finding

the defendants to be immune from suit. Since we conclude

that all defendants were protected by qualified immunity, we

need not address the district court's conclusions, or the

parties' arguments, anent absolute immunity.

None of the cases cited by Stow held that a

receiving state may not keep an IAD prisoner in the state

pending resolution of an appeal where the state is concerned

that if it returns the prisoner to the sending state and the

appeal is successful the prisoner could obtain dismissal of

the indictment against him under the IAD. To be sure, some

of the case law supports the proposition that Stow could not

6. Because it found that Horan had qualified immunity, the
court declined to consider Horan's claim of absolute
prosecutorial immunity. On appeal, Stow seems mistakenly to
believe that the court found that Horan had absolute
immunity, and much of his argument addresses that question.

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have obtained dismissal of the indictment against him if the

state had returned him to Massachusetts pending appeal. See,

e.g., Joubert v. McKernan, 588 A.2d 748, 751 (Me. 1991)

(denying a prisoner's claim that a receiving state was

required to retain custody over him pending resolution of his

appeal); State v. Jefferson, 574 A.2d 918, 921-22 (Md. 1990)

(denying a prisoner's claim that the receiving state had

violated the anti-shuffling provision of the IAD by returning

him to the sending state pending his "de novo" appeal of his

conviction under state statute); Shanks v. Commonwealth, 574

S.W.2d 688 (Ky. Ct. App. 1978) (denying a prisoner's claim

that the receiving state had violated the anti-shuffling

provision of the IAD by returning him to the sending state

pending his retrial after a mistrial and analogizing that

situation to returning a prisoner to the sending state

pending appeal of a conviction) (dictum). Nonetheless, those

cases do not proscribe what the state did here, or actually

hold that an IAD prisoner has the unequivocal right to be

returned to the sending state pending appeal. Given the

potentially serious consequences of prematurely returning

Stow to Massachusetts and the dearth of precedent, we think

it is clear that a reasonable state official could decline to

rely on those cases -- all of which are from other

jurisdictions -- in determining when to return Stow to

Massachusetts.

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Moreover, the IAD itself does not require Stow's

return to Massachusetts after his sentencing. Instead, it

requires only that a prisoner be returned "[a]t the earliest

practicable time consonant with the purposes of this

agreement." See N.H. Rev. Stat. Ann. 606-A:1, Art. V(e). On

its face, therefore, the IAD establishes no bright-line

rules, but anticipates case-by-case evaluations about when it

is possible to return an inmate to his sending state.

Finally, we note that the New Hampshire Supreme

Court has recently held that the state may keep an IAD

prisoner in the state pending resolution of his appeal where

the state had legitimate concerns that it might not be able

to retry him if his appeal were successful. See Cross v.

Warden, 644 A.2d 542 (N.H. 1994).

Because appellees violated none of Stow's clearly

established rights by keeping him in the state pending

resolution of his appeal, they are protected from a suit for

damages by qualified immunity. See Nereida-Gonzalez, 990

F.2d at 704.

B. Stow's Transfer to NHSP

Stow accepts the district court's determination

that New Hampshire law gave him no right to notice, a

statement of reasons for his transfer, or a hearing before

being transferred from the county jail to the NHSP.

Nevertheless, he asseverates that a Massachusetts prison

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classification regulation, 103 Code Mass. Regs. 420.04

(1992) (stating that the regulation applies to "all inmates

at state, county and federal correctional institutions who

are serving a sentence imposed by Massachusetts"), applied to

him while he was in New Hampshire because he was serving his

Massachusetts sentence while in that state. He claims that

that regulation grants him certain pre-transfer procedural

rights. Even if Stow's argument that the classification

regulation applied to him is correct,7 it avails him naught:

the regulation conferred no pre-transfer procedural rights on

Stow. Rather, it provides that a classification hearing

"shall normally occur before an inmate's transfer." See id.

420.09(2)(a). But "transfer" is defined to be either

"[t]he act of moving an inmate from one correctional facility

to another correctional facility within Massachusetts upon

approval by the Commissioner or his designee," or an

"inmate's movement to an out of state or federal facility."

Id. 420.06 (emphasis supplied). Furthermore, the term

"correctional facility" is defined to mean a "state, county

or contract correctional institution located within

Massachusetts." Id. (emphasis supplied). Nowhere does the

regulation confer procedural rights on inmates who are

7. We do not decide this point, but we note that Stow's
argument appears to find support in Good v. Commissioner of

Correction, 629 N.E.2d 1321, 1323-24 (Mass. 1994).

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transferred intrastate from one correctional facility to

another, neither of which is located in Massachusetts.

Stow also argues that the district court failed to

consider his retaliatory transfer claim. We agree.

Accordingly, we remand to the district court to consider that

claim under the relevant case law. See, e.g., Ferranti v.

Moran, 618 F.2d 888, 891 (1st Cir. 1980); McDonald v. Hall,

610 F.2d 16, 18 (1st Cir. 1979).

C. Discovery-Related Issues

Stow also claims that the district court erred in

ruling on certain discovery-related matters. First, he says

that the court erred in granting summary judgment since

discovery had not been completed. But he did not present

this argument to the district court -- indeed, he, himself,

moved for brevis disposition -- and the argument is,

therefore, waived. See e.g., Ouimette v. Moran, 942 F.2d 1,

12 (1st Cir. 1991).

Second, Stow says that the court erred in

sustaining O'Mara's objection to a request for the production

of documents, thereby depriving Stow of evidence necessary to

support his retaliatory transfer claim. Stow asked O'Mara to

provide copies of the following:

-- any and/or all relevant data, such as other
inmates/pre-trial detainees charged with class A
Felonies, admittance sheets, records, etc. which would
show their name, type of charge and how many
dis[c]iplinary reports, or 24 hr lock-ups they
rec[ei]ved from the periods of Sept. 07, 1990 and April

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01-1991 while being housed at the Hillsborough County
jail. [And]

-- any and/or all relevant data, such as would be
necessary to show which pre-trial detainees/inmates
housed at the Hillsborough county jail from the [same
periods] were charged with class A Felonies and did not
rec[ei]ve any d-reports and/or 24 hr lock-ups and were
transferred to the N.H.S.P. Additionally, copies of any
transfer papers and that part of their inmate records
which apply.

O'Mara objected on the ground of burdensomeness, stating that

the requests would require him to review and classify

approximately 2,200 files and copy each file in its entirety.

He pointed out, correctly, that Stow had not offered to pay

for the copying. He also said that he would be reluctant to

allow Stow to review the files of other prisoners since they

were confidential. We find that the lower court did not

abuse its discretion in sustaining O'Mara's objections,

especially since Stow's requests were overbroad and sought

information irrelevant to his claim.

Third, Stow claims that the court erred in denying

his request to take into account a set of admissions under

Fed. R. Civ. P. 36, to which O'Mara did not respond. While

such admissions are appropriately considered on summary

judgment, see generally United States v. Kasuboski, 834 F.2d

1345, 1350 (7th Cir. 1987); see also Talley v. United States,

990 F.2d 695, 697 (1st Cir.) ("Under [Rule] 36(a), the

failure to respond to such a request is deemed a binding

admission, unless the court later grants leave under [Rule]

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36(b) to withdraw the admission."), cert. denied, 114 S. Ct.

190 (1993), we have already remanded Stow's retaliatory

transfer claim, see supra, and we assume that the district

court will consider O'Mara's default admissions on remand.8

We note, however, that O'Mara may yet move to permit

withdrawal of the admissions. See Fed. R. Civ. P. 36(b). We

intimate no opinion on how the district court should treat

such a motion if one is forthcoming.

III. Conclusion

We need go no further. To the extent that Stow

advances other claims, none require comment. It suffices to

say that we have considered them all, and summarily reject

them. We add only that his request for declaratory judgment

is moot because he has been returned to Massachusetts, see

Preiser v. Newkirk, 422 U.S. 395 (1975), and that the denial

of his motion to file a further amended complaint was within

the court's discretion, see Foman v. Davis, 371 U.S. 178, 182

(1962) (holding that leave to amend may be denied if the

amendment would be futile). Finally, the court did not err

in declining to appoint counsel. See Cookish v. Cunningham,

787 F.2d 1, 2 (1st Cir. 1986) (explaining that an indigent

litigant has no constitutional right to counsel in a civil

8. For clarity's sake, we note that the court need not
consider the default admissions relating to O'Mara's alleged
duty to return Stow to Massachusetts. Given their ambiguity,
the admissions do not alter our conclusion that O'Mara has
qualified immunity. See Talley, 990 F.2d at 686.

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case, but must demonstrate exceptional circumstances to

justify the appointment of counsel).

Affirmed in part and remanded for further

proceedings.

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