 

              United States Court of Appeals
                          For the First Circuit
No. 13-2278 

                              ROBERT GOGUEN,

                           Plaintiff, Appellee,

                                    v.

        DAVID ALLEN, JESSICA ALMEIDA, DARLENE BUGBEE, JAMES FRENCH,
    EDDIE JACQUES, JENNIFER GILBLAIR, MARGARET KELLY, CRAIG MEUNIER,
                      KEITH PLOURD, MICHAEL RIZZO,

                          Defendants, Appellants,

          COREY SWOPE, SHAWN MAGUIRE, GARY CRAFTS, THERESA BROWN,
                       JULIE HAYDEN, JEFFREY JACQUES,

                               Defendants.
                          ___________________

                APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF MAINE
             [Hon. John A. Woodcock, Jr., U.S. District Judge]
                          ___________________

                                 Before
                            Lynch, Chief Judge,
                    Ripple* and Selya, Circuit Judges.
                          ___________________

     Peter T. Marchesi, with whom Cassandra S. Shaffer              and
Wheeler & Arey, P.A., were on brief, for appellants.
     Michael J. Waxman for appellee.


                                                 
      * Of the Seventh Circuit, sitting by designation.




       
 

        March 12, 2015




               ‐2‐
     
 
                RIPPLE,       Circuit      Judge.        Robert    Goguen       is    a   former

pretrial       detainee       at    the    Somerset       County      Jail    (“SCJ”).           He

brought this action alleging that various correctional officers

at       SCJ   violated       his    rights       under     the    First,       Eighth,         and

Fourteenth Amendments by inflicting punishment on him without

due process of law and by retaliating against him for filing

grievances       against        members      of     SCJ’s      staff.         The     defendant

officers and administrators moved for judgment on the pleadings,

summary judgment on the merits, and also summary judgment on the

basis of qualified immunity.                  The district court granted summary

judgment        to    several        defendants          who    had     not     participated

personally       in     the    alleged      violations.           With    respect         to   the

remaining        defendants,         the    court        concluded       that    there         were

genuine        issues    of     material      fact       concerning       the    defendants’

actions and motivations that precluded summary judgment.                                   These

remaining defendants timely appealed.

                We    conclude       that    the        defendants’       appeal      must      be

dismissed for want of appellate jurisdiction.                             The defendants’

arguments on appeal take issue with the district court’s factual

assessments and do not present a pure issue of law for this

court’s consideration.               Consequently, following our holdings in

Cady      v.   Walsh,     753      F.3d    348    (1st     Cir.    2014),       and    Penn      v.


                                                  ‐3‐
      
 
Escorsio, 764 F.3d 102 (1st Cir. 2014), we cannot entertain the

defendants’ appeal.

                                          I.

                                          A.

              Between     March     and   December        2011,     Mr.    Goguen     was

detained at the SCJ awaiting his trial on pending charges in

state and federal courts.             From March 15, 2011, until June 23,

2011,    the    SCJ     housed     Mr. Goguen       in    its     E-pod,    a    general

population area in which inmates are allowed some freedom of

movement.       In contrast, SCJ’s A-pod, which houses inmates in

administrative segregation, inmates in disciplinary segregation,

and   inmates    who     are   classified      as   maximum       security,     imposes

significantly greater restrictions.                      Mr. Goguen’s allegations

center   on     his     repeated    placement       in     A-pod,    ostensibly        for

administrative         segregation.       We     therefore        discuss,      in    some

detail, the conditions of confinement in A-pod.

              Inmates     in      administrative          segregation        endure      a

significantly restrictive environment.                    While in administrative

segregation, inmates are allowed out of their cells for one hour

per day, five days per week, for recreation.                      “Recreation” takes

place in a caged area that is approximately five feet wide by

ten   feet     long.      Inmates    in   administrative          segregation        leave


                                           ‐4‐
   
 
their    cells    to    shower      three     times    per    week;    each      inmate

generally is allowed ten to fifteen minutes to shower.                           Once a

week, inmates in administrative segregation are allowed out of

their cells to make a telephone call.

              According to the defendants, any inmate housed in A-

pod, whether placed there for administrative segregation, for

disciplinary segregation, or because of their maximum-security

classification,        are   strip    searched      every    time    they    enter   or

leave their cells.   All cells in A-pod are searched at least once

per day, compared to cells in E-pod, which are searched on a

monthly basis.         Additional cell searches also may be conducted

when    SCJ    staff    members      receive       information      that    an   inmate

possesses contraband.              When a cell search is conducted, the

inmate housed in that cell is strip searched prior to being

removed from the cell.

              When an inmate is taken to administrative segregation,

all of the inmate’s property is put into a bag and taken to the

property      room.     If    an    inmate     in    administrative        segregation

requests his legal materials, arrangements are made to provide

the legal materials to the inmate when the property officer is

on duty.      When an inmate is placed back in general population,

the inmate’s property is returned by the property officer.


                                             ‐5‐
   
 
                 Placement       in   administrative         segregation       is    reviewed

within seventy-two hours by the classification supervisor.                                  SCJ

policy also requires that, within the same time frame, an inmate

be       given        notice     of    the    reason         for     his     placement       in

administrative segregation and of the date and time that the

committee        will     hold    a   hearing     to    review      the     administrative-

segregation            placement.          Another      review       of     administrative-

segregation status is done within seven days (every Friday) to

determine        if     continued      placement        is   needed;        review    can    be

performed by any day shift commander.

                 1.    June 23 Disciplinary Charges

                 The incidents relevant to Mr. Goguen’s claims begin on

June      23,         2011,    when    Officer         Jennifer       Gilblair       searched

Mr. Goguen’s cell in E-pod for an envelope. Officer Gilblair

asked Officer Craig Meunier not to let Mr. Goguen upstairs while

she was searching the cell.                  Mr. Goguen was allowed to watch the

cell search from downstairs.                  Based on the configuration of the

SCJ, however, the district court concluded that one actually

cannot watch a cell search from downstairs.                                 The defendants

dispute whether the district court reasonably could have reached

this      conclusion          based   on   the    evidence         before    it.      Officer

Gilblair’s            search    uncovered     commissary           items    including       one


                                                 ‐6‐
      
 
plastic soap dish, one bar of soap, one plastic bowl, one white-

colored   shower      shaver,     and    one     bottle    of     shampoo.      It   is

undisputed that, due to a lack of funds, Mr. Goguen could not

have purchased these items; consequently, Officer Gilblair wrote

a disciplinary report and a notice of infraction for a violation

of C–04 of the SCJ Inmate Discipline Policy, “Giving, Receiving,

or Swapping.”1       Mr. Goguen maintains that there was no legitimate

reason    to    search      his   cell   for      an    envelope     because     legal

envelopes are supplied for free by the commissary.

            According to Officer Meunier, Mr. Goguen responded to

the search of his cell by arguing and swearing at him.                         Officer

Meunier     therefore       wrote    a    disciplinary          report   concerning

Mr. Goguen’s conduct, in which he charged Mr. Goguen with a

violation      of   B–24,   “Interfering,”        and     B–12,    “[P]rovocation.”2

Mr. Goguen denies that he argued with or swore at the officers

involved in the search of his cell; instead, he maintains that

Officer Gilblair yelled and cursed at him.                      Mr. Goguen contends

that these charges were falsely brought by Officers Meunier and
                                                 
1   See R. 56-11 (SCJ Policy-“Inmate Discipline”) at 72; R.45-18

(SCJ Disciplinary Report dated 6/23/11) at 1.
2  R.45-20 (SCJ Disciplinary Report dated 6/23/11) at 1.
Although the disciplinary report identifies “Provocation” as a
violation of policy “B-12,” “Provocation” actually corresponds
to B-13. R.56-11 (SCJ Policy-“Inmate Discipline”) at 71.


                                           ‐7‐
     
 
Gilblair.             Notably,         Mr.      Goguen     attributes       Officer      Gilblair’s

actions to the fact that, just before the search, he had been a

witness for another inmate and “wrote a report against Gilblair

for     her      misconduct           .    .    .   or    harassment.”3         Following      this

incident, Mr. Goguen was placed in administrative segregation in

A-pod on order of then-Sergeant Keith Plourd.4

                 A      non-defendant               officer,        Officer     Ducharme,       was

assigned to investigate the giving-receiving-swapping charge and

spoke to Mr. Goguen on the day of the incident.                                       He informed

Mr. Goguen of the alleged violation and asked for Mr. Goguen’s

side      of    the      story.           Officer        Ducharme    provided      Mr.    Goguen   a

notice         of     infraction,              which     informed     him     of    the    charge.

Mr. Goguen admitted that the items found in his cell were not

issued to him, but claimed that they either were left in the

cell, given to him by another inmate, or left behind in the

shower; he claimed that he was unaware that he could not have

them.
                                                 
3     R.83 (Goguen Dep.) at 47.
4  Sergeant Plourd now has been promoted to Lieutenant. However,
we shall refer to him by his rank at the time the alleged
actions took place.
   Mr. Goguen maintains that, as a result of the search conducted
on June 23 and his subsequent transfer to A-pod, some of his
legal papers went missing.       He has not substantiated this
allegation through any sworn statement.


                                                         ‐8‐
     
 
             Officer James French was assigned to investigate the

interfering-provocation charge.              He supplied Mr. Goguen with a

notice, informed Mr. Goguen of the charge, and asked for his

side of the story.

             The    standard    notice    informs      inmates    that    they     will

receive an opportunity to respond or to explain the alleged

violation to a disciplinary hearing officer within seven days;

the hearing officer considers whether the inmate is guilty and

determines the appropriate sanction.                The notice further states

that the inmate has the right to call witnesses and to question

them, provided the witnesses are identified and the questions

are presented to the hearing officer prior to the hearing date.

             Notices and reports of infractions are forwarded to

Special Projects Officer Gary Crafts.                    Officer Crafts reviews

each matter and then determines how the charge should proceed.

For     instance,    he   may    determine      that     the    charge    should     be

changed, dismissed, or steered toward an informal resolution.

He also may refer the matter for further investigation or for a

disciplinary        hearing.          Officer    Crafts        referred    both     of

Mr. Goguen’s       June   23    infractions     for      disciplinary     hearings.

Mr. Goguen    identified        his   witnesses     by    description      and     cell

location, but not by name.             He also did not put in writing the


                                          ‐9‐
     
 
questions that he wanted witnesses to answer.                                 As a result,

neither Officer Crafts, nor the hearing officer, pursued any

witness statements on Mr. Goguen’s behalf.

               A    hearing       was     conducted        on     July    1     by       Officer

Eddie Jacques.               At     the    hearing,          Officer      Jacques             heard

Mr. Goguen’s         testimony,         viewed     still        photos,       reviewed         the

officers’      incident       reports,      and      found      Mr.    Goguen     guilty        of

“Giving, Receiving, or Swapping,” for which he received a verbal

reprimand.           Officer Jacques        also     found       Mr.   Goguen     guilty        of

“Interfering” and “Provocation,” for which he received a verbal

reprimand and a $10 fine.                 Officer Eddie Jacques stated in his

reports     that       he    had     assessed        zero       days     of    disciplinary

segregation.           Mr.    Goguen       appealed        the     decision       concerning

interfering         and     provocation      to      the      administrator          of        SCJ,

Major David Allen, but the decision was affirmed.

               While      these     proceedings         were     ongoing,       Mr.       Goguen

stayed    in       A-pod.     His    placement       first       was    reviewed         by   non-

defendant           Lieutenant          Campbell         on        June        26,            2011.

Lieutenant Campbell determined that Mr. Goguen should remain in

administrative         segregation,        and    Mr.    Goguen        received      a    notice

that he would be kept in administrative segregation and his

placement again would be reviewed on July 1, 2011.


                                              ‐10‐
   
 
             On     July   1,   2011,     a     hearing       was    held    to    review

Mr. Goguen’s         administrative-segregation                status.       Lieutenant

Darlene Bugbee was the hearing officer, and Officer French and

non-defendant        Officer    Welsh         served     as     committee         members.

Mr. Goguen attended and testified at the hearing, after which

the     committee    determined     that       Mr.     Goguen       should   remain    in

administrative        segregation       until     a    classification         committee

could review his security status.

             On July 6, 2011, another administrative segregation

hearing occurred.          This time, Lieutenant Bugbee was the hearing

officer; Sergeant Plourd and Officer Meunier served as committee

members.     Following the hearing, at which Mr. Goguen testified,

the     committee     determined    that        he     should       be   removed      from

administrative segregation because classification had reviewed

Mr. Goguen’s status and had determined that he still should be

classified as a medium-security inmate.                       Mr. Goguen therefore

was released from administrative segregation and returned to E-

pod, where he remained until he was transported to the Penobscot

County Jail on July 10, 2011.

             2.     July 15, 2011 Incident

             After Mr. Goguen returned to SCJ, Mr. Goguen again was

placed in A-pod on July 15, 2011, as a result of a dispute


                                           ‐11‐
     
 
concerning    his       bunk    assignment.         During     cell   reassignments,

Mr. Goguen was assigned an upper bunk.                        Mr. Goguen, however,

told Officer Michael Rizzo that he needed a lower bunk.                            When

Officer    Rizzo        inquired      of   the      medical    department    whether

Mr. Goguen had a bottom-bunk restriction, the medical department

responded that he did not.                 The parties give vastly different

accounts     of    the       events   that    followed.         According    to    the

defendants,5 Officer Rizzo ordered Mr. Goguen to move to the

upper bunk, but Mr. Goguen refused and told Officer Rizzo to

send him to A-pod, which Officer Rizzo did.                     Officer Rizzo also

wrote a disciplinary report and a notice of infraction for a

violation of B–11, “Order, Refusing to obey.”6  In his deposition,

Mr. Goguen denied that he had been ordered to take an upper

bunk; he testified that, after Officer Rizzo called the medical

department and discovered that Mr. Goguen did not have a medical

restriction       for    a    lower   bunk,      Officer   Rizzo      “slammed    [him]

against the wall,” handcuffed him, and escorted him to A-pod.7

The B-11 infraction eventually was dismissed.


                                                 
5 The defendants’ version is set forth in their brief.                             See
Appellants’ Br. 27–28.
6   R.56-11 (SCJ Policy-“Inmate Discipline”) at 71.
7   R.83 (Goguen Dep.) at 58–59.


                                             ‐12‐
     
 
                Mr. Goguen’s placement in administrative segregation

was      reviewed     by   Lieutenant      Campbell    on   July    18,   2011.     He

determined       that      Mr.    Goguen    should    remain   in    administrative

segregation.           Mr. Goguen received notice of the decision and

notice that his placement would be reviewed on July 22, 2011.

On July 22, 2011, a hearing was held to review Mr. Goguen’s

administrative segregation status; Lieutenant Campbell served as

the      hearing      officer,     and    non-defendant     Officers      Jewell   and

Madore served as committee members.                   At the hearing, Mr. Goguen

did not dispute that he told Officer Rizzo that he should be

taken to A-pod if he was not going to be assigned a lower bunk;

he does dispute that he was disruptive, that he argued, and that

he refused an order, which were the bases for his transfer to A-

pod.8       The hearing committee determined that Mr. Goguen should

remain in administrative segregation because of his habit of

“arguing, wanting [his] own way, [and being] non-cooperative.”9

On       July   28,     Mr.      Goguen    was   removed    from     administrative




                                                 
8     See R.56-3 (Administrative Segregation Status Placement dated
7/15/11) at 14 (“Inmate Robert Goguen placed on Ad Seg for
disrupting the pod during cell moves. Inmate Goguen argued with
the pod officer during cell moves.”).
9    Id.


                                             ‐13‐
      
 
segregation and moved back to E-pod because he was “[r]eady to

follow orders” and was placed in an upper bunk.10

                       Shortly                 after         Mr.     Goguen       returned        to     E-pod,

Officer Rizzo approached Mr. Goguen and stated:                                                 “‘I will make

sure         that          you        do       not        come   back     to   this    block.      I   will   do

whatever it takes in my personal power to make sure you spend

the rest of your time in A[-]pod.                                          I don’t care who I have to

talk to.’”11

                       3.        August 31/September 1, 2011 Incidents

                       On August 31, 2011, Mr. Goguen was on a telephone call

with           a        federal                magistrate          judge       about     another       lawsuit.

Major Allen interrupted the call and insisted that Mr. Goguen

hang up the telephone.                                    When Mr. Goguen tried to explain that he

was          on        the           telephone              with    a      federal      magistrate       judge,

Major Allen “took the phone from [Mr. Goguen’s] hand, hung the

phone up, told [Mr. Goguen] to put [his] hands behind [his]

back, [and] [Mr. Goguen] was handcuffed, shackled and escorted

to A[-]pod.”12                          Once there, Major Allen informed him that he

(Mr. Goguen)                     would              not    be    threatening          other   officers     with

                                                 
10    Id.
11   R.83 (Goguen Dep.) at 62.
12   Id. at 17.


                                                                   ‐14‐
      
 
lawsuits                under            his        watch.13        When     it     was     determined       that

Mr. Goguen in fact had been on the telephone with a federal

magistrate judge, Mr. Goguen was escorted back to the telephone

to resume the call.

                        Also on August 31, Officer Rizzo wrote a disciplinary

report            and        a      notice          of    infraction        for   a      violation    of    B–13,

“Provocation,” for arguing.                                  These charges were later dismissed.

The record does not contain either the report or the dismissal.

The record does contain, however, an “Administrative Segregation

Status Placement” dated August 31, 2011.14                                                According to that

document,                    Mr.            Goguen         was       placed         in      segregation        by

Sergeant Plourd                         for         “continually          arguing     with    Staff    in    the

performance                    of         their          duties”     and     “threatening        Staff       with

lawsuits.”15                     The         following         day,       however,        Lieutenant       Bugbee

reviewed the placement and removed Mr. Goguen from A-pod because

Major Allen had “advise[d]” that Mr. Goguen did “not pose [a]

threat to security.”16




                                                 
13 See id. at 16–17.

14    R.56-3 at 17.
15    Id.
16    Id.


                                                                   ‐15‐
       
 
               Mr. Goguen remained in E-pod for a little over three

and one-half hours.                   At that time, officers were conducting a

count of the inmates.                  When officers reached Mr. Goguen’s cell,

his     back    was          facing    the      officers,       and      he    appeared        to    be

urinating.          Mr.        Goguen      later   testified          that     he    in   fact      was

urinating during the count.                      Officer Rizzo wrote a disciplinary

report    and       a    notice       of   infraction          for   a   violation        of   A–05,

“Count.”17       Officer Rizzo also wrote up Mr. Goguen for violations

of B–19, “Threatening,” and B–13, “Provocation,” for swearing

and calling Officer Rizzo names.                      Mr. Goguen again was placed in

A-pod.

               On       September          1,    2011,     Officer        Gilblair        notified

Mr. Goguen of this infraction and asked for Mr. Goguen’s version

of the events.               On September 8, 2011, Mr. Goguen received notice

that a disciplinary hearing for the incident was scheduled for

September 13, 2011.                  Officer Crafts presided at the hearing, at

which     Mr.       Goguen        testified.              As    part      of    this      hearing,

Officer Crafts reviewed answers to written questions posed by

Mr.     Goguen          to     his     cell      mate.          Following           the   hearing,

                                                 
17 R.56-11 (SCJ Policy-“Inmate Discipline”) at 70.    The policy
defines this violation as follows: “A-05 Count-Non presence at
or interfering with the taking of an inmate count, either formal
or informal.” Id.


                                                   ‐16‐
     
 
Officer Crafts found Mr. Goguen guilty of the count violation,

but not guilty of the threatening and provocation violations.

For punishment, Officer Crafts imposed a $25 fine and three

days’ disciplinary segregation.                Major Allen denied Mr. Goguen’s

appeal.

              Mr. Goguen’s administrative segregation initially was

reviewed on September 4 by Lieutenant Campbell, who determined

that Mr. Goguen should remain in A-pod.                        Mr. Goguen received

notice to that effect and was advised that his placement would

be       reviewed     again     on      September      9.       At      that       hearing,

Sergeant Plourd presided, and Officer French and non-defendant

Officer      Ducharme        acted   as     committee       members.         The   parties

dispute      the     testimony       that    was     given.      According         to   the

defendants,         Mr.    Goguen    testified       that    there     was    an   ongoing

investigation concerning Officer Rizzo and other staff at the

SCJ.18     The committee determined that Mr. Goguen should remain in

administrative            segregation     until      the    investigation      into     the

incident concluded.



                                                 
18 Mr. Goguen now denies saying this; according to Mr. Goguen, he

testified at the hearing that Officer Rizzo’s statements should
be investigated. Mr. Goguen, however, does not point to any
sworn testimony in the record to support his denial.


                                              ‐17‐
      
 
             Mr.       Goguen’s         administrative           segregation          was    again

reviewed on September 16, with Lieutenant Campbell as hearing

officer and non-defendant Officers Marose and Davis as committee

members.     At the hearing, the committee considered evidence that

there was no investigation of SCJ officers pending, Mr. Goguen

had no new write-ups, and he had been medically cleared.                                       The

committee       determined         that       Mr. Goguen        should    be     removed      from

administrative          segregation,                but       placed      on      disciplinary

segregation       for       an   old      write-up.            On   September         21,    2011,

Mr. Goguen      was     transferred           back     to     E-pod,     where       he   remained

until October 21, 2011.

             4.    September 29 and October 2 Infractions

             On September 29, 2011, Officer Rizzo saw Mr. Goguen

drinking black liquid from a cup.                          Officer Rizzo asked Mr. Goguen

if he had a receipt for coffee; Mr. Goguen responded that he did

not.     Officer Rizzo told Mr. Goguen to dump it out, and, a few

minutes later, Mr. Goguen complied.                          Mr. Goguen claims that the

liquid    was     water      and       that    it     was     the   cup    that      was    black.

Officer    Rizzo       wrote       a    disciplinary           report     and    a    notice    of

infraction       for    a    violation         of     C–04,     “Giving,        Receiving,      or

Swapping.”        According to Mr. Goguen’s testimony, Officer Rizzo

was on the upper tier, and he was on the lower tier when this


                                                    ‐18‐
     
 
encounter occurred; Mr. Goguen asserts that the cup itself was

“disgustingly black” and that Officer Rizzo refused to inspect

it.19

                 Officer         Meunier            gave     Mr.   Goguen    a   notice   of   the

September 29 infraction that same day.                              Officer Meunier spoke to

Mr. Goguen and asked for his side of the story.                                     The following

day, Mr. Goguen received notice that a disciplinary hearing was

scheduled for October 3, 2011.

                 On October 2, 2011, Mr. Goguen was seen eating half of

a sandwich while he had a full uneaten sandwich on his tray.                                     A

review of video showed that another inmate had pushed his tray

to the center of the table and that Mr. Goguen removed the

sandwich.           Non-defendant Officer Baldinelli wrote a disciplinary

report       and      a    notice        for        a   violation    of     C–14,   “Unauthorized

Food,”20 and Mr. Goguen received a copy of the notice.                                         Non-

defendant Officer Munn was assigned to investigate the incident

and spoke to Mr. Goguen.                        Officer Munn told Mr. Goguen what the

alleged violation was about.                            Mr. Goguen stated: “Ah f--k it”;

he also stated that another inmate “threw us under the bus. I



                                                 
19 R.83 (Goguen Dep.) at 79.

20   R.56-11 (SCJ Policy-“Inmate Discipline”) at 73.


                                                           ‐19‐
      
 
don’t need to hear any more.”21                              The following day, Mr. Goguen

was given notice that a disciplinary hearing for the sandwich

incident was scheduled for October 6, 2011.

                  The disciplinary hearing for the coffee incident was

held      on     October          3.        Officer       Jeffrey        Jacques    served     as    the

hearing officer.                 Mr. Goguen testified at the hearing and stated

that the liquid was water, not coffee.                               He had been given a few

still photos to present as evidence at the hearing.                                            Officer

Jeffrey Jacques found Mr. Goguen guilty of the violation and

imposed          a     one-day          cell        restriction.           An    inmate       on    cell

restriction            is     allowed         to     come    out    of    the    cell   to    eat,    to

shower, and for appointments, but may not leave the cell for

recreation.             Mr. Goguen did not appeal this decision.

                  The disciplinary hearing for the sandwich incident was

held on October 6.                       Non-defendant Officer Michael Johnson was

the     hearing         officer.          Mr.       Goguen      pleaded    guilty,      and    Officer

Johnson imposed a four-hour cell restriction.

                  5.     October 13, 2011 Cell Search

                  On        October          13,        2011,      Sergeant        Plourd      ordered

Officer Rizzo               to      perform         a    search     of     Mr.     Goguen’s        cell.


                                                 
21 R.45-9 (Munn Aff.) at 1.




                                                         ‐20‐
     
 
Mr. Goguen asserts that, during the search, Officers Rizzo and

Eddie Jacques took thousands of pages of discovery related to

one    of     Mr.     Goguen’s       then-pending           civil            cases         (against

correctional officers at another county jail) and threw them on

the floor.         Some documents landed in the toilet and sink; all

were   out    of    order    and    strewn       across     the        cell.          The    search

uncovered a soap dish and soap; neither inmate in the cell had a

receipt,      and     both      disclaimed             ownership            of       the     items.

Officer Rizzo found a cup of coffee, dried paper blocking most

of the vent, and an empty coffee bag with a sugar packet under

Mr. Goguen’s        mattress,            all     of       which         were         contraband.

Officer Rizzo also found an envelope on Mr. Goguen’s side of the

cell   that    was     sealed       and        was     marked     as        legal     paperwork.

Officer Rizzo        opened        the     envelope        and     saw           a    memo        from

Major Allen, at which point he stopped and took the paperwork to

Sergeant     Plourd    to     review.           Sergeant        Plourd        looked        at     the

paperwork     and     instructed          Officer        Rizzo         to     return         it    to

Mr. Goguen, which Officer Rizzo did.




                                                ‐21‐
   
 
             Officer Rizzo wrote a disciplinary report and a notice

of infraction for a violation of C–09, “Possession,”22 concerning

the items found in the cell, but the charge later was dismissed.

             6.       October 17, 2011 Shower Request

             On October 17, 2011, Mr. Goguen was housed in a cell

on the bottom tier in E-pod.                  He asked to go upstairs to shower

and was told that he was not allowed to go to the upper tier for

any reason and that, as a lower-tier inmate, he could not shower

after the top of the hour.                  Later Mr. Goguen, along with another

inmate named Gill, argued with Officer Rizzo about the shower

rules.23     The following day, Officer Rizzo wrote a disciplinary

report     and    a    notice    of    infraction          for    a    violation    of     B–13,

“Provocation,” in connection with the shower incident.                                   Officer

Eddie Jacques investigated the incident and spoke to Mr. Goguen.

The officer told Mr. Goguen the nature of the alleged violation,

asked    for      Mr.    Goguen’s       version           of     the   events,     and     gave

Mr. Goguen        a    copy     of    the    notice.             On    October     20,     2011,

Mr. Goguen       received       notice       that     a    disciplinary          hearing     was

scheduled for October 25, 2011.                     The hearing actually occurred

                                                 
22 R.56-11 (SCJ Policy-“Inmate Discipline”) at 73.

23 Mr. Goguen does not allege that the rules did not exist or
that they were being enforced in an arbitrary manner.


                                               ‐22‐
      
 
on October 31, 2011, with Officer Jeffrey Jacques as hearing

officer.      The officer heard testimony from Mr. Goguen and also

considered video footage and the written responses to questions

posed by Mr. Goguen to Llewellyn Eaton, Officer Julie Hayden,

and Officer Rizzo.24              Officer Jeffrey Jacques found Mr. Goguen

guilty of the provocation violation and imposed three days of

disciplinary        segregation.          Major     Allen     denied     Mr.    Goguen’s

appeal.

              7.    Miscellaneous Incidents, Grievances, and Requests

              Throughout        September     and       October    2011,   Mr.     Goguen

filed   a   number        of    grievances    concerning       the    actions    of     SCJ

officers.          One     grievance      concerned       a   book     entitled,      “The

Prisoner’s         Self    Help     Litigation          Manual.”        According        to

Mr. Goguen, the book had been delivered to him at the beginning

of September.         When he returned from recreation on September 6,

however, the book, as well as Mr. Goguen’s personal notes on the

book,   had    been       removed    from    his    cell,     allegedly    by    Officer

Shawn Maguire.            Mr.    Goguen   filed     a    grievance     concerning       the

missing     book.          On    September    21,       Officer      Maguire    wrote     a


                                                 
24 Mr. Goguen also had posed questions to another inmate, Gill,

but Gill had been released so was unavailable to respond to
questions.


                                             ‐23‐
   
 
memorandum       responding       to    this     and     four    other     grievances.

Subsequently, Mr. Goguen filed grievances concerning his lack of

access to various resources including law library books, prison

policies, Title 34–A of the Maine Revised Statutes, and the

self-help litigation manual; he also filed grievances concerning

the    staff    at   SCJ    opening      his     legal   mail.25       One    of   these

subsequent      grievances,       filed     on      September   29,    concerned      the

actions of Officer Rizzo.              According to Mr. Goguen’s grievance,

Officer Rizzo refused to have someone examine the documents that

Mr. Goguen intended to bring to a meeting with his attorney.

                                                 
25 Non-legal mail is opened and inspected for contraband.                               Any
mail that is determined to be legal mail is not to be opened,
but is attached to a legal mail inspection form and forwarded to
the housing unit.                               The following day an officer in the housing
unit delivers the mail and opens any legal mail in the presence
of the inmate.                           Once the officer determines that the mail does
not contain contraband, the legal mail is turned over to the
inmate.
   Inmates are not allowed to have sealed envelopes in their
cells, and there is no exception for legal mail.     SCJ policy
does permit inmates to send sealed envelopes without censoring,
inspection, or restriction to certain recipients.
   According to the defendants, if an inmate in A-pod has
outgoing legal mail, A-pod officers go around on the night shift
with a sealed box for the inmate to place any legal mail in the
box.   The inmate seals the envelope immediately before placing
it in the box. For inmates in E-pod, there is a box for mail in
the pod. This box is picked up daily. The inmate can seal any
mail right before placing it in the box.    Mr. Goguen maintains
that there is no rule about having to seal or not seal any
envelopes.


                                             ‐24‐
    
 
According to Mr. Goguen, Officer Rizzo both denied his request

and taunted him in doing so.

                   On     October           12,      Officer       Margaret      Kelly   confiscated

Mr. Goguen’s legal file as he arrived for a meeting with his

attorney, although the documents already had been examined for

contraband and had been authorized for use at the meeting.                                          The

file was returned to Mr. Goguen later, but he did not have the

benefit         of      his      research           and    documentation       in    discussing     his

criminal case with counsel.

                   8.     October 21, 2011 Placement in A-pod

                   On       October           21,         2011,     Lieutenant       Bugbee     placed

Mr. Goguen in administrative segregation and transferred him to

A-pod because he “pose[d] a serious threat [to the] security or

orderly running of the institution.”26                                   The “factual basis for

[the] placement” was that Mr. Goguen had not “adjust[ed] to the

rules        and      regulations              set    forth        by   this   facility”      and   had

continued to argue with and “be[] confrontational with Staff.”27

This placement was reviewed by non-defendant Sergeant Pullen on

October 24, 2011, who determined that Mr. Goguen should remain

                                                 
26 R.56-3                (Administrative             Segregation        Status      Placement   dated
10/21/11) at 23.
27   Id.


                                                            ‐25‐
      
 
in       administrative     segregation;         Mr.   Goguen   was    provided     with

notice of this decision the day it issued.

                9.    Maximum Security Classification

                On October 26, 2011, Mr. Goguen was reclassified from

medium security to maximum security because it was determined

that he was a danger to the safety and security of the facility.

Mr.       Goguen     received     notice    of   his    reclassification,        and   he

appealed the reclassification decision.                      The appeal hearing was

held       on   November     1,     2011.        At    the    appeal     hearing,      the

classification           committee    consisted        of   Officer    Theresa   Brown,

Lieutenant Bugbee and two non-defendant officers, Stephen Giggey

and Chris Murray.            Mr. Goguen was present and testified at the

hearing.           The   classification      committee        reviewed    log    entries

concerning Mr. Goguen dated between July 23, 2011, and October

21, 2011.          It determined that Mr. Goguen would remain in maximum

security because he was very argumentative and disrespectful to

officers and because he was unable to follow the rules of the

facility.          The classification committee makes its determinations

based on majority vote.




                                             ‐26‐
      
 
            Mr.      Goguen      was   told        that    he     could    appeal     his

classification decision to Major Allen, but he did not do so.28

According       to   Mr.   Goguen,     an   appeal        would    have    been   futile

because it was Major Allen who had reclassified him to maximum

security only five days earlier.                   Mr. Goguen remained in A-pod

from October 21, 2011, until he was transferred out of SCJ in

December 2011.

            Maximum security inmates are allowed the same amount

of recreation, time for showers, and time for phone calls as

inmates    in    administrative        segregation.             However,    corrections

officers place maximum security inmates in four-point restraints

when they use the library cart and make phone calls.                        Mr. Goguen

maintains that Sergeant Plourd imposed this requirement only on

him, and this practice prevented him from accessing the library

cart.29     He       testified    that      this     practice      was     enforced    by

Lieutenant Bugbee and Officer Jessica Almeida as well.30




                                                 
28 An inmate is permitted to request review of classification

status by a classification supervisor every sixty days.     An
inmate’s classification status is automatically reviewed every
ninety days.
29   See R.83 (Goguen Dep.) at 42.
30   See id. at 43, 100.


                                            ‐27‐
      
 
                        10.        Other Incidents

                        Among the other bases for Mr. Goguen’s complaints is

that a drawing he made was confiscated as contraband because it

contained gang symbols.                             Mr. Goguen had left the drawing inside

a magazine in his cell, and the magazine with the drawing still

in it was found in the possession of another inmate.                                        Color

drawings               are         considered       contraband   at   the   SCJ   because    some

colored drawings have been used to conceal drugs; the inmates

lick or swallow the colored paper to get high.                                      Mr. Goguen

maintains that there were no gang symbols in the drawing and

questions whether inmates are able to hide drugs in a drawing

made inside the SCJ.

                        Mr. Goguen also testified that, on November 6, 2011,

after being reclassified as a maximum-security inmate, Officers

Eddie Jacques and Meunier ordered him to turn his back to the

cell door and put his hands together out through a door slot.

They then handcuffed him and pulled the door open suddenly,

wrenching his arms and shoulders and causing severe pain in his

shoulder and back.31 




                                                 
31 See id. at 94–95.




                                                          ‐28‐
       
 
                Finally, Mr. Goguen recounted that, in December 2011,

he was moved by Officer Meunier from an observation cell to

another        A-pod     cell    that   had    blood,     vomit,    and     feces    in   it.

According to Mr. Goguen, both Officer Meunier and Officer Kelly

denied him supplies to clean the cell.

                                               B.

                                               1.

                Mr. Goguen filed this action under 42 U.S.C. § 1983,

naming numerous officers and administrators at SCJ.32                                In his

second         amended     complaint,         Mr.     Goguen     detailed      the     events

described above and alleged that these and other actions taken

by       the    defendants        violated      his      right     to     be    free      from

unreasonable searches and seizures under the Fourth Amendment,

violated         his     right     to   due         process    under    the     Fourteenth

Amendment,        his     right    to   petition       the     Government      for   redress

under the First Amendment, his right of access to counsel under




                                                 
32 Specifically,                          Mr. Goguen named the following defendants:
Major Allen, Lieutenant Bugbee, Sergeant Plourd, Classifications
Supervisor Theresa Brown, and Officers Almeida, Crafts, French,
Gilblair, Hayden, Eddie Jacques, Jeffrey Jacques, Kelly,
Maguire, Meunier, Rizzo, and Cory Swope.


                                                ‐29‐
      
 
the Sixth Amendment, and his right under the Eighth Amendment to

be free from cruel and unusual punishment.33



                                                 
33 He alleged:

                        (1)         Officers        intentionally        had
                                    “fabricat[ed]   reports    knowing   the
                                    results   would    lead   to   immediate
                                    segregation [and] use[d] administrative
                                    segregation . . . as a means to punish”
                                    him, in violation of his Fourteenth
                                    Amendment due process rights;
                        (2)         Officers        intentionally         had
                                    “confiscat[ed] [his] legal documents,
                                    law    library    books,”    and    other
                                    materials, arbitrarily had prevented
                                    him from using the library cart, and
                                    had interfered with his confidential
                                    communication   with   courts   and   his
                                    counsel, in violation of the First and
                                    Sixth Amendments and state law;
                        (3)         Officers arbitrarily had kept him in
                                    administrative      segregation,   in
                                    violation of his Fourteenth Amendment
                                    due process rights;
                        (4)         Officers   had   “persecuted”  him   in
                                    retaliation for his “filing grievances”
                                    and “complaining to officials about
                                    wrongful conduct,” in violation of the
                                    First Amendment;
                        (5)         Officers deliberately and repeatedly
                                    had “subjected [him] to visual body
                                    cavity searches without justification,”
                                    in violation of his Fourth, Eighth, and
                                    Fourteenth Amendment rights;
                        (6)         Officers  had  confined    him   to  an
                                    unsanitary cell and had    provided him
                                    unsanitary food service,   in violation
                                                     
                                                     ‐30‐
       
 
                        Following                    discovery,                      the             defendants                      filed               a

comprehensive                      dispositive                    motion.                  The         defendants                  maintained

that          many          of       Mr. Goguen’s                     allegations                    --       that           officers               had

denied him use of his legal materials during his meeting with

his attorney, had limited his access to the library cart, and

had served him food in an unsanitary manner, for example --

failed to state a claim for relief.                                                            The defendants moved for

summary             judgment                on       the        merits             with          respect              to       Mr. Goguen’s

claim           that          he       had         suffered                retaliation.                          According                 to       the

defendants, it was “difficult to discern . . . which actions the

Plaintiff allege[d] were retaliation”; but, with respect to the

situations he had mentioned specifically, there was no evidence

of        a      causal             link           between               his         grievances                   and         the          alleged

retaliation.34                           The          defendants                   also          argued              that          they           were

entitled               to        summary               judgment                with          respect               to       Mr.         Goguen’s

Fourteenth Amendment Due Process claim and with respect to his

Eighth Amendment claim.                                       Turning to the Due Process claim, the
                                                                                                                                                             
                                    of his Eighth and Fourteenth Amendment
                                    rights; and
                        (7)         Officers collectively had conspired to
                                    deprive  him   of   his  constitutional
                                    rights.
R.24 at 51-54.
34    R.44 at 13–14.


                                                                             ‐31‐
       
 
defendants          noted        that,    under    Bell     v.     Wolfish,       441    U.S.   520

(1979), the key question was whether the conditions to which

Mr. Goguen was subjected constituted “punishment” that required

“‘an adjudication of guilt in accordance with due process of

law.’”35        However, they continued, “not all restrictions placed

upon       a    pretrial          detainee     are      punishment”:              a     condition,

restriction or disability “‘reasonably related to a legitimate

governmental objective, . . . does not, without more, amount to

“punishment.”’”36                 They     submitted       that,    because       Mr.    Goguen’s

placements            in        administrative          segregation          were        justified

initially        by       his     violations       of     jail     rules,       and     then    were

reviewed        within       seventy-two          hours,     the     requirements         of     due

process were met.

                The defendants also maintained that they were entitled

to       summary         judgment     on    Mr.     Goguen’s        constitutional            claims

related        to     being       strip     searched.            They     noted       that,    after

balancing the interests of the institution against the privacy

interests           of     the    inmates,        the     Supreme       Court     in    Bell    had

concluded that subjecting a pretrial detainee to visual body-

cavity         inspections          following       contact        with    individuals          from
                                                 
35 Id. at 16 (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)).

36   Id. (quoting Bell, 441 U.S. at 539).


                                                   ‐32‐
      
 
outside      the   institution     did    not     violate    due    process.      They

argued that the strip searches to which Mr. Goguen was subjected

while      he    was    in   administrative       segregation        similarly    were

justified by concerns of “‘[m]aintaining institutional security

and preserving internal order and discipline.’”37                     Alternatively,

the defendants contended that they were entitled to qualified

immunity on this claim.            According to the defendants, “it [wa]s

not      clearly   established     that   the     officers        involved   in   strip

searching inmates, including those who are pretrial, upon entry

or exit from a cell in A-pod were violating a constitutional

right.      Any mistake as to the constitutionality of their actions

was reasonable.”38

                                          2.

                After   briefing   was    completed,        the    magistrate     judge

issued an exhaustive report and recommendation.                          In it, the

magistrate judge summarized Mr. Goguen’s claims accordingly:

                     Goguen maintains that he was subjected
                to intentional punishment based on his
                tendency to file grievances and speak out if
                he perceived what he believed to be a
                violation of his rights or a violation of
                prison policy, and also based on his
                litigation  against   correctional  officers
                                                 
37 Id. at 26 (quoting Bell, 441 U.S. at 546).

38   Id. at 27.


                                           ‐33‐
      
 
            from another facility.          The punishment
            consisted   of    excessive    confinement    in
            administrative    segregation,      unreasonable
            reclassification     to    maximum     security,
            excessive strip searches and body cavity
            searches, confiscation of legal documents,
            interference with his communications with
            the court and with counsel, confiscation of
            personal    property,     placement     in    an
            unsanitary cell, unsanitary food practices,
            application    of    excessive     force,    and
            imposition   of   four-point     restraints   to
            frustrate access to legal materials. Goguen
            also advances a claim of [F]irst [A]mendment
            retaliation, another claim that has the
            ability to gather up multiple circumstances
            in support of one claim.        In addition to
            advancing these two core theories, Goguen
            also itemizes a laundry list of smaller
            claims based on each distinct incident of
            which he complains.[39]

The magistrate judge then reviewed each of these claims.       With

respect to Mr. Goguen’s claim that he was subjected to punitive

strip searches, the magistrate judge explained that

                 [t]he real issue here involves the
            imposition of punishment on a pretrial
            detainee, without adequate predeprivation
            process.      Although   Goguen’s   move  was
            classified   as   administrative  segregation
            rather than disciplinary segregation, if the
            conditions of confinement imposed on him in
            A-pod crossed the punishment threshold, a
            claim is established for imposing prehearing
            punishment on a pretrial detainee.[40]
                                                 
39 Goguen v. Gilblair, No. 2:12-cv-00048-JAW, 2013 WL 5407225, at

*24 (D. Me. Sept. 25, 2013).
40   Id. at *29.


                                   ‐34‐
      
 

The        magistrate                   judge         noted    that       there        were    additional

restrictions attendant to administrative segregation, but

concluded                that          it       was   not     necessary          “to    decide   whether

these           conditions,                    in     combination,          cross      the     ‘punitive’

threshold for a pretrial detainee,” because Mr. Goguen’s

placement                  in        administrative                segregation          also     involved

“multiple                 daily            strip      searches        and     visual      body     cavity

searches.”41                     “This final condition,” the magistrate judge

explained, “is sufficient to support a finding of punitive

confinement, without due process, regardless of the fact

that              Somerset                     County         calls         it         ‘administrative’

confinement.”42                               Critical        to      the        magistrate       judge’s

conclusion was the fact that,

                        after Goguen eventually received process at
                        the Jail, his actual sanctions typically
                        paled in comparison to what he experienced
                        while waiting for the process to unfold.
                        For example, he was assessed three days of
                        disciplinary    segregation   for    urinating
                        during count, but suffered approximately 13
                        days   of  what   amounted  to    disciplinary
                        segregation while awaiting his hearing.[43]


                                                 
41 Id.

42    Id.
43    Id.


                                                                   ‐35‐
       
 
The          magistrate                     judge           therefore       concluded        that     “[t]hese

conditions                  .      .       .        raise    a    genuine    issue      of   material       fact

concerning the denial of due process.”44

                       Addressing the retaliation claim, the magistrate judge

found that Mr. Goguen had established a causal link between his

protected activity -- filing grievances -- and several actions

of the defendants, such as placing Mr. Goguen in four-point

restraints, destroying legal documents incident to a search, and

subjecting Mr. Goguen to physical pain.

                       The magistrate judge then reviewed her findings and

concluded that, with respect to Officers Brown, Crafts, Hayden,

Maguire,                Swope,              and       Jeffrey       Jacques,      Mr.    Goguen       had   not

sufficiently                     developed             his       claims.     As   for    the    due    process

claim, however, she concluded that there was sufficient evidence

to raise a genuine issue of material fact

                       concerning   those   officers     who   either
                       supported or directed the imposition of
                       administrative segregation on Goguen prior
                       to completion of the due process procedures
                       outlined in Wolff v. McDonnell[45] and against


                                                 
44 Id.

45 In Wolff v. McDonnell, 418 U.S. 539, 563 (1974), the Court
held that “the minimum requirements of procedural due process”
are satisfied by providing to prisoners “advance written notice
of the claimed violation and a written statement of the
                                
                                                                   ‐36‐
       
 
                        those officers who actually conducted or
                        ordered Goguen to comply with the strip
                        search and visual body cavity search process
                        while   Goguen  was   subject    to so-called
                        “administrative” segregation.[46]

According to the magistrate judge, those defendants were Major

Allen, Lieutenant Bugbee, Sergeant Plourd, and Officers Almeida,

French,               Gilblair,                   Meunier,                 and          Rizzo.                     Turning               to         the

retaliation claim, the magistrate judge determined that

                        there is a genuine issue concerning those
                        officers who supported or directed the
                        imposition of administrative segregation on
                        Goguen prior to completion of the due
                        process procedures outlined in Wolff v.
                        McDonnell, and the cumulative impact of
                        disrupting   court   conferences,   scattering
                        legal   papers   throughout   Goguen’s   cell,
                        imposing four-point shackles when Goguen
                        accessed   the   library   cart,   and   using
                        unnecessary force.     This claim is viable
                        against Allen, Almeida, Bugbee, Gilblair,
                        Kelly, Meunier, Plourd, and Rizzo.[47]
                        The magistrate judge also addressed the defendants’

assertion                 of        qualified                  immunity.                       She         explained                  that          her

“recommendation that the due process and retaliation claims go

forward              is       premised                in       large            measure              on       the         imposition                   of

multiple daily strip searches and visual body cavity searches on

                                                                                                                                                             
factfinders as to the evidence relied upon and the reasons for
the disciplinary action taken.”
46    Goguen, 2013 WL 5407225, at *32.
47    Id.


                                                                             ‐37‐
       
 
a pretrial detainee in advance of Wolff v. McDonnell process.”48

The        magistrate                   judge       rejected    the   defendants’   argument   that

established case law allowed for the routine strip searching of

inmates upon leaving or entering a segregation unit:

                        The cases do reflect that the use of such
                        searches is permitted in the context of
                        introduction to a facility, or transfer to
                        segregated confinement, or upon return from
                        contact visits.       Bell v. Wolfish itself
                        supports   the    point    as   even   pretrial
                        detainees were subject to a facility-wide
                        policy of imposing strip searches following
                        contact visits.      The difference in this
                        case, however, is that the issue concerns
                        compliance with the Wolff v. McDonnell due
                        process requirements before transferring a
                        pretrial detainee in general population to
                        punitive      conditions      in     segregated
                        confinement.    A change in conditions that
                        imposes multiple daily strip- and visual
                        body cavity searches as the price of any
                        out-of-cell liberty can reasonably be deemed
                        punitive in comparison to the conditions of
                        prison life existing in general population.
                        The right of a pretrial detainee to receive
                        due process prior to the imposition of
                        prison-based punishment has been clearly
                        established since the 1970s decisions in
                        Wolff v. McDonnell and Bell v. Wolfish.
                        Consequently, I recommend that the court not
                        recognize    qualified    immunity    in   this
                        particular context. [49]




                                                 
48 Id.

49    Id. at *33.


                                                               ‐38‐
       
 
In       short,    the     magistrate    judge         determined    that      the   record

presented a genuine issue of triable fact as to (1) whether the

defendants’ actions in transferring Mr. Goguen to administrative

segregation were punitive in nature, especially considering the

conditions in A-pod compared to the infractions which prompted

his transfer, and (2) whether the officers’ motives in taking

these and other actions were prompted by Mr. Goguen’s protected

activity in violation of the First Amendment.

                  The    defendants     filed       objections      to   the    magistrate

judge’s recommendations.              The district court, however, affirmed

the recommended disposition in its entirety.                             The defendants

timely appealed.50


                                                 
50 In          their notice of appeal, the defendants identified the
following portions of the order as the bases for their appeal:
                  (1)    the   decision   that   Allen,   Almeida,
                         Bugbee,    French,    Gilblair,    Kelly,
                         Meunier, Plourd and Rizzo are not
                         entitled to qualified immunity on the
                         claim that they violated procedural due
                         process   by   imposing    administrative
                         segregation on Goguen; and
                  (2)    the   decision   that  Allen,    Almeida,
                         Bugbee, Gilblair, Eddie Jacques, Kelly,
                         Meunier, Plourd and Rizzo are not
                         entitled to qualified immunity on the
                         claim that they retaliated against
                         Goguen   in  violation   of   his   First
                         Amendment rights; and
                                                 
                                                ‐39‐
      
 

                                                                                                                                                             
                        (3) the                   decision                  that            Allen,               Almeida,
                                    Bugbee,                              French,                              Gilblair,
                                    Eddie Jacques, Kelly, Meunier, Plourd
                                    and Rizzo are not entitled to qualified
                                    immunity on the conspiracy claim.
R.76 at 1-2.
   In their summary judgment motion, however, the defendants
urged that they were entitled to qualified immunity only with
respect to Mr. Goguen’s claims related to the strip searches:
                        Considering the Court’s recent decision in
                        Florence [v. Board of Chosen Freeholders,
                        132 S. Ct. 1510 (2012)], it is not clearly
                        established that the officers involved in
                        strip searching inmates, including those who
                        are pretrial, upon entry or exit from a cell
                        in A-pod were violating a constitutional
                        right.       Any    mistake   as    to   the
                        constitutionality  of   their   actions  was
                        reasonable.
R.44 at 27.        In their objections to the report and
recommendation, the defendants attempted to expand their
qualified immunity argument to all of the claims on which they
had maintained that they were entitled to judgment as a matter
of law:
                        The qualified immunity standard is very
                        broad and protects “all but the plainly
                        incompetent or those who knowingly violate
                        the law.” In this case, a discussion of why
                        there were not constitutional violations is
                        made above.  In addition, Defendants Allen,
                        Almeida, Bugbee, French, Eddie Jacques,
                        Gilblair, Kelly, Meunier, Plourd and Rizzo
                        are entitled to qualified immunity because
                        the right in question was not clearly
                        established.
R.70 at 13 (citations                                  omitted).   In their briefing before this
court, the defendants                                   primarily focused on the use of strip
searches for detainees                                 in administrative segregation. We cannot
conclude that this                                     sufficed to raise the issue of the
                                                                  
                                                                             ‐40‐
       
 
                                                                          II.

                        Our         first            task           is         to        determine                  whether               we        may

entertain the defendants’ appeal.                                                          Mr. Goguen argues that we

have jurisdiction over an interlocutory appeal from the denial

of summary judgment on qualified immunity grounds “only when the

denial of the motion is based on ‘purely legal’ grounds.”51                                                                                            He

maintains therefore that we do not have jurisdiction over this

appeal because the magistrate judge concluded that there were

“question[s]                      of        fact            to        be         resolved                 by        the          factfinder”

concerning the punitive nature of Mr. Goguen’s confinement.52                                                                                          We

agree that appellate jurisdiction is lacking.

                                                                           A.

                       In Johnson v. Jones, 515 U.S. 304 (1995), the Supreme

Court considered whether an appellate court could entertain “an


                                                                                                                                                             
defendants’ qualified immunity with respect to Mr. Goguen’s
claims unrelated to strip searches.
   That said, while Mr. Goguen focused exclusively on this issue,
he does not maintain that the defendants’ other qualified
immunity arguments are subject to forfeiture. Consequently, we
have considered the defendants’ arguments on qualified immunity
that are not related directly to the strip searching of pretrial
detainees in administrative segregation.     For the reasons set
forth infra at II.B., however, these arguments do not alter our
conclusion that we lack jurisdiction over the present appeal.
51    Appellee’s Br. 5.
52    Id. (internal quotation marks omitted).


                                                                             ‐41‐
       
 
immediate    appeal     of     a    district    court      order    denying    [the

defendants’] motion for summary judgment” when “[t]he order in

question    resolved    a     fact-related      dispute    about    the    pretrial

record.”     Id. at 307.           Guided by the language of the statute

authorizing appellate review (28 U.S.C. § 1291), the narrowness

of the collateral order doctrine, and its decision in Mitchell

v. Forsyth, 472 U.S. 511 (1985), in which it had recognized the

denial of qualified immunity as an appealable order, the Court

concluded   that   “a   defendant,       entitled     to   invoke    a    qualified

immunity    defense,    may    not    appeal    a   district   court’s     summary

judgment order insofar as that order determines whether or not

the pretrial record sets forth a ‘genuine’ issue of fact for

trial.”    Johnson, 515 U.S. at 319–20.

            Beginning with Stella v. Kelley, 63 F.3d 71 (1st Cir.

1995), we have explored the contours and confines of Johnson’s

holding.    In Stella, we observed that,

            on the one hand, a district court’s pretrial
            rejection of a proffered qualified immunity
            defense remains immediately appealable as a
            collateral order to the extent that it turns
            on a pure issue of law, notwithstanding the
            absence of a final judgment.    On the other
            hand, a district court’s pretrial rejection
            of a qualified immunity defense is not
            immediately appealable to the extent that it
            turns on either an issue of fact or an issue
            perceived by the trial court to be an issue
            of fact.   In such a situation, the movant

                                         ‐42‐
   
 
            must await the entry of final judgment
            before appealing the adverse ruling.
                  The bottom line, then, is simply this:
            a summary judgment order which determines
            that the pretrial record sets forth a
            genuine issue of fact, as distinguished from
            an order that determines whether certain
            given    facts   demonstrate,   under   clearly
            established    law,   a   violation   of   some
            federally protected right, is not reviewable
            on demand.

Id. at 74 (emphasis added) (citations omitted).53

            We had an opportunity to apply Johnson again in Díaz v.

Martínez,   112   F.3d   1   (1st   Cir.     1997).     In   that    case,   the

plaintiffs sued defendant  Díaz, a rogue police officer, and his

supervisor, Tomás Vázquez Rivera, for the personal injuries and

the wrongful death of a family member stemming from defendant

Díaz’s use of his weapon.       Vázquez moved for summary judgment on

qualified    immunity    grounds,    the     district    court      denied   the

motion, and Vázquez appealed.        We noted that, “under Johnson and

Stella, . . . a defendant who, like Vázquez, has unsuccessfully

sought summary judgment based on qualified immunity is permitted

to appeal the resultant denial on an interlocutory basis only to

                                                 
53 See            also Behrens v. Pelletier, 516 U.S. 299, 313 (1996)
(“Johnson reaffirmed that summary judgment determinations are
appealable when they resolve a dispute concerning an ‘abstract
issu[e] of law’ relating to qualified immunity.” (alteration in
original)).


                                      ‐43‐
     
 
the extent that the qualified immunity defense turns upon a

‘purely   legal’   question.”        Id.   at   3   (emphasis   added).      We

concluded that Vázquez’s appeal “withers in the hot glare of

these precedents.”     Id. at 4.     We explained:

           [W]e are left with Vázquez’s asseveration
           that the district court erred in denying his
           motion    for    summary    judgment   because,
           regardless of legal theory, the evidence was
           insufficient     to     establish    deliberate
           indifference on his part, and, thus, he was
           entitled    (at   the   least)    to  qualified
           immunity.    But Judge Laffitte rejected this
           argument on the basis that the record
           contained controverted facts and that, if a
           factfinder were to resolve those disputes
           favorably to the plaintiffs, he could then
           find that Vázquez’s supervision of the
           disciplinary affairs bureau was so pathetic
           that his conduct constituted deliberate
           indifference to the plaintiffs’ rights.
           Since Vázquez does not argue that the facts
           asserted    by   the    plaintiffs,   even   if
           altogether true, fail to show deliberate
           indifference –- he argues instead what his
           counsel termed at oral argument “the absence
           of facts,” i.e., that the facts asserted by
           the plaintiffs are untrue, unproven, warrant
           a different spin, tell only a small part of
           the story, and are presented out of context
           –- the district court’s determination is not
           reviewable on an interlocutory appeal.

Id. at 4-5 (emphasis added) (footnote omitted).

           Two   of   our   recent   opinions       speak   directly   to   this

issue in factual scenarios closely akin to that presented here.

The first of these is Cady v. Walsh, 753 F.3d 348 (1st Cir.


                                      ‐44‐
   
 
2014).     In that case, Cady brought an action on behalf of her

son,    Paul    Galambos,    after    Galambos      died    “from    self-inflicted

injuries that he suffered while he was a pretrial detainee at

the Cumberland County Jail (CCJ).”                  Id. at 349.       Cady alleged

that the defendants had been deliberately indifferent to her

son’s     medical    needs    while        he     was    detained    at     CCJ;   the

defendants, in response, filed a motion for summary judgment, in

which    they    maintained    that    they       were   protected    by    qualified

immunity.       The district court, however, disagreed and denied the

motion,    reasoning    “that   there       remained      material    and    disputed

issues of fact as to the claims against all three individuals

which    precluded    the    grant    of    immunity.”        Id.    at    350.    The

defendants subsequently appealed.

               Before this court, Cady argued that, under Johnson, we

lacked jurisdiction to review the appeal.                     We therefore began

our analysis of the jurisdictional issue with Johnson:

                    Because the “qualified immunity defense
               is, in part, an immunity from trial as well
               as an immunity from damage awards,” a pre-
               trial denial of the defense may, in some
               cases, be immediately appealable. . . . The
               Johnson Court held that a district court’s
               conclusion that a summary judgment record in
               a qualified immunity case raised a genuine
               issue of fact as to whether the defendants
               were involved in the alleged events was not
               immediately appealable under the collateral
               order doctrine.

                                           ‐45‐
   
 

               Johnson   relied   in   part   on   the
          “separability” requirement of the collateral
          order doctrine. The Court reasoned:

                Where . . . a defendant simply
                wants to appeal a district court’s
                determination that the evidence is
                sufficient to permit a particular
                finding of fact after trial, it
                will often prove difficult to find
                any such “separate” question --
                one     that    is    significantly
                different from the fact-related
                legal issues that likely underlie
                the   plaintiff’s  claim   on   the
                merits.

          Questions of “evidentiary sufficiency” --
          i.e., whether the record is capable of
          supporting a particular factual finding,
          rather than a particular legal conclusion --
          “are not sufficiently distinct to warrant
          interlocutory appeal.”   If appellate courts
          were to overlook this separability problem
          in the context of fact-based qualified
          immunity appeals and accept jurisdiction,
          those courts “may well be faced with
          approximately the same factual issue again,
          after trial,” and interlocutory review would
          prove an unwise use of appellate resources.

Id. at 358–59 (citations omitted) (quoting Johnson, 515 U.S. at

314, 316–17; Mlodzinski v. Lewis, 648 F.3d 24, 27 (1st Cir.

2011)).

          In   Cady,   we   faulted    the   defendants   for   failing   to

“develop the argument that, even drawing all the inferences as

the district court concluded a jury permissibly could, they are


                                      ‐46‐
     
 
entitled to judgment as a matter of law.”          Id. at 359–60.      We

acknowledged that there had been cases in which the defendants

had accepted as true the plaintiffs’ version of the facts (and

the   reasonable   inferences   from     those   facts),   and   we   had

exercised jurisdiction.   Id. at 360 (citing Mlodzinski, 648 F.3d

at 28).    The defendants in Cady, however, had not done so;

instead, their briefing disputed “both the facts identified by

the magistrate judge as well as the inferences proffered by the

plaintiff and deemed reasonable by the magistrate judge.”             Id.

We explained:

               With   respect    to  each   individual
          defendant, the defendants’ briefing objects
          to the way the district court construed the
          facts and argues that the district court and
          magistrate judge erred in their conclusions
          as to what a reasonable juror could find.
          Those fact-based arguments are inextricably
          intertwined with whatever “purely legal”
          contentions are contained in the defendants’
          briefs: were we to attempt to separate the
          legal from the factual in order to address
          only those arguments over which we might
          permissibly exercise jurisdiction, we simply
          would not know where to begin. . . . [T]he
          defendants’ brief repeatedly attacks the
          district court’s factual conclusions, making
          no effort to separate fact-based arguments
          from “purely legal” ones.

Id.   The defendants’ “fact-based challenge[s],” we explained,

“would . . . not defeat jurisdiction if [they] were advanced in

the alternative.     But nowhere in the defendants’ brief does

                                  ‐47‐
   
 
there      appear      any    developed    argument       that       the   defendants   are

entitled        to   summary        judgment     even     if   the     district      court’s

conclusions about the record were correct.”                            Id. at 361.       We

therefore concluded that, “[b]ecause the defendants fail[ed] to

pose even the qualified immunity question in a manner that would

permit us to conclude that ‘the answer to it does not depend

upon whose account of the facts is correct,’ we lack[ed] the

authority to provide an answer.”                       Id. (quoting Stella, 63 F.3d

at 75).

                Penn    v.     Escorsio,       764     F.3d    102    (1st    Cir.    2014),

petition for cert. filed, 83 U.S.L.W. 3586 (U.S. Dec. 15, 2014)

(No. 14-709), is our latest substantive decision on the subject.

As       with   Cady,        Penn    involved        allegations       that    corrections

officers were deliberately indifferent to the serious medical

needs of a pretrial detainee, Lalli, and the defendant officers

had moved for summary judgment on qualified immunity grounds.

The defendants did not dispute that “clearly established law at

the time Lalli attempted suicide dictated officers must take

some reasonable measures to thwart a known, substantial risk

that a pre-trial detainee will attempt suicide.”                              Id. at 105.

“Rather,” we explained,

                Defendant   Winslow   argues  he   was  not
                deliberately indifferent, and therefore did

                                                ‐48‐
      
 
              not violate Lalli’s rights because “the
              summary judgment record does not support
              finding a genuine issue as to whether
              Winslow actually knew of the risk [that
              Lalli would attempt suicide] or whether
              Winslow was deliberately indifferent to that
              risk.” Similarly, Defendant Escorsio argues
              she “was not deliberately indifferent to
              Lalli’s Fourteenth Amendment rights because
              she took some action to avert the risk of
              harm.”     But these discussions “nowhere
              develop the argument that, even drawing all
              the   inferences   as  the   district  court
              concluded a jury permissibly could, they are
              entitled to judgment as a matter of law.”
              Instead, Winslow’s arguments take issue with
              the district court’s factual determinations
              as to his knowledge of risk and his efforts
              -- or lack thereof -- to abate that risk.
              Similarly, Escorsio’s arguments dispute the
              court’s factual finding that she may have
              taken essentially no action to avert the
              risk Lalli would attempt suicide when she
              returned him to Cell 135.

                   As we recently stated in Cady, these
              “fact-based challenge[s] would, of course,
              not defeat jurisdiction if . . . advanced in
              the alternative.       But nowhere in the
              defendants’ brief does there appear any
              developed argument that the defendants are
              entitled to summary judgment even if the
              district   court’s   conclusions  about   the
              record were correct.”    As such, we have no
              basis on which to exercise jurisdiction over
              whether Defendants violated Lalli’s clearly
              established    rights    through   deliberate
              indifference to the risk that he would
              attempt suicide.

Id.     at   111   (alterations   in   original)   (footnote   omitted)

(citations omitted).


                                        ‐49‐
     
 
                                             B.

             Our    review     of    the    defendants’       briefing      before    this

court convinces us that their arguments suffer from the same

infirmities as those of the defendants in Stella, Díaz, Cady,

and Penn.         In their recitation of the facts and substantive

arguments,        the    defendants         repeatedly       ignore   evidence,       and

reasonable inferences therefrom, on which the magistrate judge

based her conclusion that there were genuine issues of material

fact concerning whether the defendants’ actions were punitive

and retaliatory.

             By    way    of     example      only,    the     defendants      fail       to

acknowledge        the    direct       evidence       that     Officer       Rizzo    and

Major Allen       both    were      using    administrative      segregation         as   a

means   of   retaliating         against      Mr.    Goguen     for   his    filing       of

grievances and use of the courts.54                   Moreover, with respect to

the incident on June 23, the defendants never acknowledge three

key pieces of evidence that point to the conclusion that
                                                 
54 See            R.83 (Goguen Dep.) at 62 (recounting Officer Rizzo’s
statement that he would “‘do whatever it takes in my personal
power to make sure you spend the rest of your time in A[-]
pod’”); id. at 17 (relating Major Allen’s disruption of
Mr. Goguen’s call with the federal magistrate judge and
placement of Mr. Goguen in A-pod following Major Allen’s
discovery that Mr. Goguen had been threatening officers with
lawsuits).


                                              ‐50‐
     
 
Mr. Goguen’s initial placement in administrative segregation was

retaliatory:     (1) Mr. Goguen testified that he did nothing to

interfere with the cell search or provoke the officers involved,

but it was Officer Gilblair who yelled and cursed at him; (2)

the officers cited this (disputed) lack of cooperation as the

reason for transferring Mr. Goguen to A-pod; and (3) the search

took   place   the   same    day    that     Mr.    Goguen      testified       against

Officer   Gilblair    with   respect       to    the    complaint    of     a   fellow

inmate.    The    defendants       also    ignore      evidence    pointing       to   a

retaliatory    placement     in    administrative         segregation      following

the dispute over the July 15 bunk assignments.                      The defendants

repeat    throughout     their       brief       that     Mr.     Goguen        refused

Officer Rizzo’s      order   to    take     the     top   bunk.       Mr.       Goguen,

however, explicitly refuted this in his deposition.                         Yet, the

basis for Mr. Goguen’s disciplinary action -- and his placement

in A-pod -- was his failure to obey an order.                         Finally, in

addition to their failure to acknowledge critical evidence, the

defendants’ brief explicitly questions the bases for some of the

district court’s findings.55         Like the defendants in Cady, it is

                                                 
55 See Appellants’ Br. 38–39 (“While the Recommended Decision

stated that Allen had direct oversight or involvement related to
one or more impositions of administrative segregation, Rec.
Dec., p.45, there is no evidence to this effect.”); id. at 41
                                                   
                                          ‐51‐
   
 
clear that “the defendants’ briefing objects to the way the

district court construed the facts.”                                                             753 F.3d at 360.                                 They

make          no       “‘purely                legal’              contentions”                     that           we       are         able           to

separate from these factual assertions.                                                           Id.

                        After Mr. Goguen raised the issue of our jurisdiction

in his responsive brief, the defendants did acknowledge the rule

that         they          could           seek          immediate                 review             only          if       the        district

court’s              judgment                “‘turn[ed]                   on       an        issue           of        law.’”56                   They

maintained,                    however,                 that,             “[i]f            the          denial              of        qualified

immunity was based on factual issues, the decision ‘is still

reviewable if qualified immunity is warranted on the plaintiff’s

version               of        the          facts             together                with            facts            that           are          not

disputed.’”57

                                                                                                                                                             
(“The basis for the due process claim against Gilblair and
Meunier is that they allegedly wrote false reports based on the
cell search on June 23, 2011, that resulted in Goguen being put
in administrative segregation.                                                   Rec. Dec., p.52.                               There is no
evidence to support this allegation, though.”); id. at 48 n.6
(“While the Recommended Decision states that the photographic
evidence supports Goguen’s contention that one cannot watch a
cell search from downstairs . . . , Rec. Dec., p.9, it is
unclear how the court made this determination from this one
photograph especially when it is unknown where Goguen’s cell was
located.”).
56 Reply Br. 6 (quoting Maldonado v. Fontanes, 568 F.3d 263, 267
(1st Cir. 2009)).
57 Id. (quoting Cruz-Gómez v. Rivera-Hernández, 444 F.3d 29, 33
n.5 (1st Cir. 2006) (emphasis omitted)).

                                                                             ‐52‐
       
 
               The    problem   for    the       defendants    is   that,     in    their

reply, they did not change tack, accept the district court’s

factual findings, and make an argument based on those findings.

Instead, they maintained that Mr. Goguen’s recitation of facts

should    be    ignored      because   it    relied,     in   large   part,        on   the

unsworn allegations set forth in his second amended complaint.

It is true that Mr. Goguen’s recitation of facts has its own

infirmities.58         The district court, however, did not rest its

findings       on    Mr.   Goguen’s    unsworn       allegations,     but,    instead,

“looked to Goguen’s deposition to determine whether he ha[d]

offered    any       sworn   testimony      to      support   his   unsworn    factual

assertions.”59        Indeed, the defendants characterize many facts as




                                                 
58 We           agree with the defendants that unsworn allegations
contained in a complaint, without more, are not enough to oppose
a properly supported motion for summary judgment.                    See, e.g.,
Ruiz-Rosa v. Rullán, 485 F.3d 150, 156 (1st Cir. 2007).                      We
similarly reject Mr. Goguen’s argument that we should accept the
facts set forth in his second amended complaint because, “had
Mr. Goguen understood the complicated civil rules, especially
regarding summary judgment, he would certainly have styled his
Second Amended Complaint as a Verified Complaint, thus muting
Defendants’ refrain that his averments are unsupported by sworn
testimony.”                       Appellee’s Br. 8. We have long held, and oft
repeated, that “pro se status does not free a litigant in a
civil case of the obligation to comply with procedural rules.”
Ruiz Rivera v. Riley, 209 F.3d 24, 28 n.2 (1st Cir. 2000).
59   Gilblair, 2013 WL 5407225, at *3.


                                             ‐53‐
      
 
being supported only by unsworn statements, when, in fact, they

find support in Mr. Goguen’s deposition testimony.60

             The Supreme Court held in Johnson, and we reiterated

in Cady, that “a district court’s conclusion that a summary

judgment record in a qualified immunity case raise[s] a genuine

issue of fact as to whether the defendants were involved in the

alleged     events       [is]   not   immediately           appealable    under    the

collateral       order     doctrine.”        Cady,         753    F.3d   at    358–59.

Similarly, on an interlocutory appeal, we are not at liberty to

reexamine    a    district      court’s   determination           that   there    is   a

genuine   issue      of    material   fact       as   to    a    government   actor’s

motivation in taking specific actions.                     See Valdizán v. Rivera-

Hernandez, 445 F.3d 63, 65 (1st Cir. 2006).                       As our discussion

here   demonstrates,        “overlook[ing]        this      separability      problem”

would leave us mired in numerous factual disputes that we well

may face again after trial.             Cady, 753 F.3d at 359.            Under such


                                                 
60 Among these are allegations that, on June 18, 2011, Mr. Goguen

both filed a witness statement in support of another inmate’s
complaint against Officer Gilblair and filed his own grievance
against Officer Gilblair, see R.83 (Goguen Dep.) at 47; that
Officer Gilblair failed to return property, books, and legal
papers that she had collected from Mr. Goguen, see id. at 49;
and that Major Allen placed Mr. Goguen in A-pod following his
telephone conference with the magistrate judge, see id. at 16–
17.


                                          ‐54‐
   
 
circumstances, the collateral order doctrine does not allow, and

concern for the wise use of judicial resources warns against,

the exercise of appellate jurisdiction.61


                                                 
61 In their brief, the defendants urge that we should approach

Officer Kelly differently because “[i]t appears the claims
against                 Kelly              were   inadvertently left in this case.”
Appellants’ Br. 53. We think that the constraints placed on our
jurisdiction prevent our addressing this assertion here.
   According to the defendants, the magistrate judge concluded
that “Kelly should be entitled to summary judgment because ‘the
only thing that would keep Kelly in this case is the unsanitary
cell episode, which was not exhausted administratively.’”     Id.
at 54 (quoting Goguen, 2013 WL 5407225, at *30).       We do not
believe that this is a fair reading of the magistrate judge’s
report. The quote on which the defendants rely is part of her
discussion of Mr. Goguen’s “Conspiracy” allegation. See Goguen,
2013 WL 5407225, at *30 (observing that “the overall facts and
circumstances would permit a finding of concerted action
sufficient to infer an agreement among some of the defendants to
deprive   Goguen   of  his    rights,”   but   that  “the   facts
developed . . . do not warrant sweeping” other officers into the
conspiracy and further noting that “the only thing that would
keep Kelly in this case is the unsanitary cell episode, which
was not exhausted administratively” (emphasis added)).         At
several other points in her opinion, however, the magistrate
judge   notes  Officer   Kelly’s   involvement   in the   alleged
retaliatory actions against Mr. Goguen. See id. at *25 (“Goguen
claims violations of the First Amendment and the Sixth Amendment
related to the right to access the court and counsel, based on
the seizure of legal papers and books, denial of law library
access and materials, and interference with communications with
the court and with counsel, asserted against Defendants Allen,
Bugbee, Gilblair, Jacques, Kelly, Maguire, Meunier, Plourd,
Rizzo, and Swope. . . . [F]acts and circumstances related to
throwing Goguen’s legal papers about, opening his mail,
interrupting his conferences with the court, and so forth, are
relevant to the core claims of imposing punishment on a pretrial
detainee without due process of law and of retaliating against a
                                  
                                         ‐55‐
    
 

                                                                                                                                                             
pretrial                 detainee                  for          pursuing                  petitions                  in         redress                of
grievances.” (emphasis added)); see id. at *27 (noting that the
facts related to the “unsanitary cell” incident “form part of
the facts and circumstances related to Goguen’s core due process
claim against Meunier and his retaliation claim against Meunier
and Kelly”).

   Although the evidence implicating Officer Kelly is not
particularly well-developed in the record, we do note that the
magistrate judge specifically said that there was a genuine
issue of triable fact as to her role:

                              As for the retaliation claim, . . .
                        there is a genuine issue concerning those
                        officers who supported or directed the
                        imposition of administrative segregation on
                        Goguen prior to completion of the due
                        process procedures outlined in Wolff v.
                        McDonnell, and the cumulative impact of
                        disrupting   court   conferences,   scattering
                        legal   papers   throughout   Goguen’s   cell,
                        imposing four-point shackles when Goguen
                        accessed   the   library   cart,   and   using
                        unnecessary force.     This claim is viable
                        against Allen, Almeida, Bugbee, Gilblair,
                        Kelly, Meunier, Plourd, and Rizzo.

Id. at *32 (emphasis added).   The argument that Officer Kelly
should be granted summary judgment is therefore a matter most
appropriately left to the district court in the course of
further proceedings on remand.
   We note also that the defendants’ arguments with respect to
Officer Kelly suffer from the same infirmities as their more
general arguments: They do not acknowledge the sworn testimony
in the record that supports the magistrate judge’s findings.
See R.83 (Goguen Dep.) at 89–90 (describing Officer Kelly’s
actions in taking Mr. Goguen’s legal material when he was going
to meet with counsel). Because Officer Kelly’s arguments, like
those of the other defendants, are fact-based, they are not
properly before this court on interlocutory appeal.


                                                                             ‐56‐
       
 
                                      Conclusion

                 The defendants have not come forward with any purely

legal issues that call into question the district court’s denial

of       their   motion   for   summary   judgment     on   qualified   immunity

grounds.          Consequently, we do not have jurisdiction over the

defendants’        appeal.      The    appeal    is   dismissed   for   want   of

jurisdiction.




                 APPEAL DISMISSED




                                          ‐57‐
      
