
USCA1 Opinion

	




          September 27, 1994    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1102                                   WESTON J. STOW,                                Plaintiff, Appellant,                                          v.                                 DAVID HORAN, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Weston J. Stow on brief pro se.            ______________            Jeffrey  R. Howard,  Attorney General,  and William  C.  McCallum,            __________________                          _____________________        Assistant Attorney General, on brief for Michael Cunningham appellee.            David  Horan,  Assistant County  Attorney,  and  Peter  McDonough,            ____________                                     ________________        Assistant County Attorney, on  brief for David Horan and  James O'Mara        and Hillsborough County.                                 ____________________                                 ____________________                      Per  Curiam.   Appellant  Weston  Stow  appeals the                      ___________            district court's  grant  of summary  judgment  in  appellees'            favor.  We affirm in part and remand for further proceedings.                      I.  Background                          __________                      We   describe   the   facts  in   the   light  most            advantageous  to  Stow.    See  Nereida-Gonzalez  v.  Tirado-                                       ___  ________________      _______            Delgado, 990 F.2d  701, 702  (1st Cir. 1993).   In  September            _______            1990, Stow, who was serving  a prison term in  Massachusetts,            was transported to a  county jail in New Hampshire  under the            Interstate  Agreement on  Detainers (IAD)  to stand  trial on            charges pending against  him in  that state.1   He was  tried            and  convicted on  those charges  in December  1990, and  was            returned to  county jail  pending  sentencing.   On April  1,            1991,  James O'Mara,  who  was superintendent  of the  county            jail,  obtained Stow's  transfer to  the New  Hampshire State            Prison  (NHSP).   In  a letter  to  an NHSP  official, O'Mara            explained that  Stow was "facing the  longest sentence handed            [down]  in the  history of  the Hillsborough  County Superior            Court for a  non-murder case.   In addition,  inmate Stow  is            involved in  civil litigation with the  former Superintendent            [, which] presents a  minor problem.  If inmate  Stow were to            be injured during  a forced  move, he could  allege that  the                                            ____________________            1.  The  IAD is  codified at  N.H.  Rev. Stat.  Ann. 606-A:1.            State prisoners may  file section 1983 suits based on alleged            violations of the IAD, as codified  in state law.  See Cuyler                                                               ___ ______            v. Adams, 449 U.S. 433, 442, 450 (1981).                _____            treatment  was a  result  of this  suit.   It  would be  most            helpful if this situation  could be avoided."  Stow  was then            transferred to  NHSP without  being given  prior notice  or a            statement of reasons for his transfer.                      On  May 3,  1991, a  New Hampshire  court sentenced            Stow  to 40-80 years in  prison, to be  served consecutive to            his Massachusetts sentence.  He then appealed his conviction.            On  June 14, 1991, state prison officials told him to prepare            for  his return to Massachusetts,  but later that  day he was            told  that he  would not  be returned  to Massachusetts.   He            discovered  subsequently that  county prosecutor  David Horan            had instructed prison officials to keep him in New Hampshire.            The asserted  ground for doing so was  apparently the state's            concern that,  if Stow's  appeal were successful,  Stow would            contest future  attempts to return  him to New  Hampshire for            retrial  and seek  dismissal  of the  indictment against  him            under the IAD.2                        In July and August,  Stow wrote to O'Mara, advising            him that he was being illegally detained in New Hampshire and            that it  was O'Mara's responsibility to  have him transported            back to  Massachusetts after his  sentencing.  In  August and            September,  Stow  submitted several  inmate request  slips to                                            ____________________            2.  Under what  is known as an  "anti-shuffling" provision, a            prisoner may  obtain dismissal of the  indictment against him            in a  receiving state if the  state has not tried  him on the            charges  against  him before  returning  him  to the  sending            state.  See N.H. Rev. Stat. Ann. 606-A:1, Art. IV(e).                       ___                                         -3-            NHSP Warden Michael  Cunningham, requesting clarification  of            his  situation, and stating that the county attorney had said            that Cunningham was responsible  for preventing his return to            Massachusetts.                         While these events were  unfolding, Stow filed  the            present actions against O'Mara and Horan, seeking declaratory            relief and compensatory and  punitive damages under 42 U.S.C.              1983.3   His claims  were two-fold, relating  first to  the            state's failure to return him to Massachusetts, and second to            his transfer to NHSP from the county jail.  Stow alleged that            Horan had  prevented Stow's  return to Massachusetts  in June            1991,  thereby  violating Stow's  rights  under  the IAD  and            various  provisions  of  the Federal  Constitution;  that  he            should  have  been returned  to  Massachusetts  after he  was            sentenced on May 3,  1991;4 and that O'Mara had  not returned            him  to Massachusetts despite Stow's  requests that he do so.            With  respect  to  his   second  claim,  Stow  asserted  that            transferring  him to  NHSP "without notice,  without official                                            ____________________            3.  In  his  original  complaint against  Horan,  Stow sought            injunctive  relief  as  well,  but  a consolidated  complaint            omitted  that   claim.    Later,  the   court  denied  Stow's            separately filed  motions for a  temporary restraining  order            and a preliminary and permanent injunction.            4.  In his submissions below, Stow argues that he should have            been returned either after his conviction in December 1990 or            at  the  latest  after he  was  sentenced.    We confine  our            description  of the facts and our analysis to the allegations            in Stow's complaint.                                         -4-            reason" in itself violated his rights and, moreover, occurred            in  retaliation for his  filing of a  civil complaint against            county jail  administrators and for suggesting  that he would            file  additional complaints if certain alleged constitutional            violations continued.  In  an amended complaint, Stow claimed            that  a county  employee  had  told  him  that  he  had  been            transferred  because he had filed the lawsuit.  What is more,            Stow  averred that  he had  consistently queried  county jail            authorities about  alleged  civil rights  violations  at  the            jail,  and that  he had  done so most  intensely in  the time            period immediately preceding his transfer.  Later, Stow added            Cunningham  as a  defendant, seeking  declaratory  relief and            damages.   Stow alleged that he had  informed Cunningham that            he was being held at NHSP in violation of the IAD and that he            wanted to  be returned to Massachusetts,  but that Cunningham            had refused to act.                        Subsequently, the parties filed motions for summary            judgment.5   The court granted Cunningham's motion.  It found            that  Cunningham had  absolute  immunity  deriving  from  the            common law immunity accorded wardens and others who carry out            judicial orders,  pointing to  a state decision  denying Stow            habeas relief on the basis of the alleged IAD violation.  See                                                                      ___            Stow v.  Horan, 829 F.  Supp. 504,  507 (D.N.H.  1993).   The            ____     _____                                            ____________________            5.  Cunningham   filed  a   motion  to   dismiss,  which   he            supplemented by  affidavit after the  district court directed            the parties to submit summary judgment materials.                                         -5-            court  also granted  summary judgment  for Horan  and O'Mara,            determining  that  Horan  had  qualified  immunity6 and  that            O'Mara  was protected  by qualified  immunity for  the period            preceding the state habeas  decision and by absolute immunity            for the subsequent period.  Concluding that New Hampshire law            conferred  no pre-transfer  procedural  rights  on Stow,  the            court  dismissed Stow's  claims relating  to his  transfer to            NHSP.                        II.  Discussion                           __________                      A.  Alleged IAD Violations                          ______________________                      Stow claims  first that the court  erred in finding            the defendants to  be immune  from suit.   Since we  conclude            that all defendants were  protected by qualified immunity, we            need  not address  the district  court's conclusions,  or the            parties' arguments, anent absolute immunity.                        None  of  the cases  cited  by  Stow  held  that  a            receiving state may  not keep  an IAD prisoner  in the  state            pending resolution  of an appeal where the state is concerned            that if it returns  the prisoner to the sending state and the            appeal is  successful the prisoner could  obtain dismissal of            the indictment against him  under the IAD.  To  be sure, some            of  the case law supports the proposition that Stow could not                                            ____________________            6.  Because it  found that Horan had  qualified immunity, the            court   declined  to  consider   Horan's  claim  of  absolute            prosecutorial immunity.  On  appeal, Stow seems mistakenly to            believe  that  the  court   found  that  Horan  had  absolute            immunity, and much of his argument addresses that question.                                         -6-            have obtained dismissal of the indictment  against him if the            state had returned him to Massachusetts pending appeal.  See,                                                                     ____            e.g.,  Joubert v.  McKernan,  588 A.2d  748,  751 (Me.  1991)            ____   _______     ________            (denying  a  prisoner's  claim  that a  receiving  state  was            required to retain custody over him pending resolution of his            appeal); State v. Jefferson, 574 A.2d 918, 921-22  (Md. 1990)                     _____    _________            (denying  a prisoner's  claim  that the  receiving state  had            violated the anti-shuffling provision of the IAD by returning            him to the sending state pending his "de  novo" appeal of his            conviction under state statute); Shanks v. Commonwealth,  574                                             ______    ____________            S.W.2d  688 (Ky. Ct.  App. 1978) (denying  a prisoner's claim            that  the  receiving  state had  violated  the anti-shuffling            provision  of the IAD by  returning him to  the sending state            pending  his retrial  after a  mistrial and  analogizing that            situation  to  returning  a  prisoner to  the  sending  state            pending appeal of a conviction) (dictum).  Nonetheless, those            cases do not proscribe  what the state did here,  or actually            hold that an  IAD prisoner  has the unequivocal  right to  be            returned  to  the sending  state pending  appeal.   Given the            potentially  serious  consequences  of prematurely  returning            Stow to Massachusetts  and the dearth of  precedent, we think            it is clear that a reasonable state official could decline to            rely   on  those  cases  --  all  of  which  are  from  other            jurisdictions  --  in  determining  when to  return  Stow  to            Massachusetts.                                           -7-                      Moreover, the IAD  itself does  not require  Stow's            return to  Massachusetts after  his sentencing.   Instead, it            requires only that a prisoner  be returned "[a]t the earliest            practicable  time  consonant   with  the  purposes   of  this            agreement."  See N.H. Rev. Stat. Ann. 606-A:1, Art. V(e).  On                         ___            its  face,  therefore,  the IAD  establishes  no  bright-line            rules, but anticipates case-by-case evaluations about when it            is possible to return an inmate to his sending state.                        Finally, we  note  that the  New Hampshire  Supreme            Court  has recently  held  that the  state  may keep  an  IAD                                                        ___            prisoner  in the state pending resolution of his appeal where            the state had legitimate  concerns that it might not  be able            to  retry him  if his appeal  were successful.   See Cross v.                                                             ___ _____            Warden, 644 A.2d 542 (N.H. 1994).            ______                      Because appellees  violated none of  Stow's clearly            established  rights  by  keeping  him in  the  state  pending            resolution  of his appeal, they are protected from a suit for            damages by  qualified immunity.    See Nereida-Gonzalez,  990                                               ___ ________________            F.2d at 704.                         B.  Stow's Transfer to NHSP                          _______________________                      Stow  accepts  the  district court's  determination            that  New  Hampshire  law gave  him  no  right  to notice,  a            statement of  reasons for his  transfer, or a  hearing before            being  transferred   from  the  county  jail   to  the  NHSP.            Nevertheless,  he asseverates  that  a  Massachusetts  prison                                         -8-            classification  regulation,  103 Code  Mass.  Regs.    420.04            (1992) (stating  that the regulation applies  to "all inmates            at state,  county and federal  correctional institutions  who            are serving a sentence imposed by Massachusetts"), applied to            him while he  was in New Hampshire because he was serving his            Massachusetts  sentence while in that state.   He claims that            that  regulation grants  him certain  pre-transfer procedural            rights.   Even  if  Stow's argument  that the  classification            regulation applied  to him is correct,7 it avails him naught:            the regulation conferred no pre-transfer procedural rights on            Stow.   Rather,  it  provides that  a classification  hearing            "shall normally occur before an  inmate's transfer."  See id.                                                                  ___ ___               420.09(2)(a).   But  "transfer"  is defined  to  be either            "[t]he act of moving an inmate from one correctional facility            to  another correctional  facility within  Massachusetts upon                                               ______  _____________            approval  by  the  Commissioner   or  his  designee,"  or  an            "inmate's movement to an out  of state or federal  facility."                                     ___  __ _____            Id.    420.06  (emphasis  supplied).   Furthermore, the  term            ___            "correctional facility"  is defined to mean  a "state, county            or   contract   correctional   institution   located   within                                                                   ______            Massachusetts."   Id. (emphasis  supplied). Nowhere  does the            _____________     ___            regulation  confer  procedural  rights  on  inmates  who  are                                            ____________________            7.  We  do not  decide this  point, but  we note  that Stow's            argument appears to  find support in Good v.  Commissioner of                                                 ____     _______________            Correction, 629 N.E.2d 1321, 1323-24 (Mass. 1994).            __________                                         -9-            transferred  intrastate from  one  correctional  facility  to            another, neither of which is located in Massachusetts.                       Stow also argues that  the district court failed to            consider   his  retaliatory   transfer  claim.     We  agree.            Accordingly, we remand to the district court to consider that            claim  under the relevant case  law.  See,  e.g., Ferranti v.                                                  ___   ____  ________            Moran, 618 F.2d 888,  891 (1st Cir. 1980); McDonald  v. Hall,            _____                                      ________     ____            610 F.2d 16, 18 (1st Cir. 1979).                      C.  Discovery-Related Issues                          ________________________                      Stow also  claims that the district  court erred in            ruling on certain discovery-related  matters.  First, he says            that  the  court erred  in  granting  summary judgment  since            discovery had not  been completed.   But he  did not  present            this argument to  the district court --  indeed, he, himself,            moved  for  brevis  disposition   --  and  the  argument  is,                        ______            therefore,  waived.  See e.g., Ouimette v. Moran, 942 F.2d 1,                                 ___ ____  ________    _____            12 (1st Cir. 1991).                      Second,   Stow  says   that  the  court   erred  in            sustaining O'Mara's objection to a request for the production            of documents, thereby depriving Stow of evidence necessary to            support his retaliatory transfer claim.  Stow asked O'Mara to            provide copies of the following:                 --  any   and/or  all  relevant  data,   such  as  other                 inmates/pre-trial   detainees   charged  with   class  A                 Felonies, admittance  sheets, records, etc.  which would                 show   their  name,   type  of   charge  and   how  many                 dis[c]iplinary   reports,   or  24   hr   lock-ups  they                 rec[ei]ved from the periods of  Sept. 07, 1990 and April                                         -10-                 01-1991 while being  housed at  the Hillsborough  County                 jail.  [And]                 -- any  and/or  all  relevant data,  such  as  would  be                 necessary  to  show  which  pre-trial  detainees/inmates                 housed at  the Hillsborough  county jail from  the [same                 periods] were charged with class A Felonies and did  not                 rec[ei]ve any  d-reports and/or 24 hr  lock-ups and were                 transferred to the N.H.S.P.  Additionally, copies of any                 transfer papers  and that  part of their  inmate records                 which apply.            O'Mara objected on the ground of burdensomeness, stating that            the  requests  would  require  him  to  review  and  classify            approximately 2,200 files and copy each file in its entirety.            He pointed out, correctly,  that Stow had not offered  to pay            for the  copying.  He also said that he would be reluctant to            allow  Stow to review the files of other prisoners since they            were  confidential.   We find  that the  lower court  did not            abuse  its  discretion  in  sustaining  O'Mara's  objections,            especially since Stow's  requests were  overbroad and  sought            information irrelevant to his claim.                        Third, Stow claims that  the court erred in denying            his  request to take into  account a set  of admissions under            Fed.  R. Civ. P. 36, to which  O'Mara did not respond.  While            such  admissions  are  appropriately  considered  on  summary            judgment, see generally United  States v. Kasuboski, 834 F.2d                      ___ _________ ______________    _________            1345, 1350 (7th Cir. 1987); see also Talley v. United States,                                        ___ ____ ______    _____________            990  F.2d  695, 697  (1st  Cir.)  ("Under [Rule]  36(a),  the            failure  to respond  to such  a request  is deemed  a binding            admission, unless  the court later grants  leave under [Rule]                                         -11-            36(b) to withdraw the admission."), cert.  denied, 114 S. Ct.                                                _____________            190  (1993),  we  have  already  remanded Stow's  retaliatory            transfer claim,  see supra, and  we assume that  the district                             ___ _____            court will consider  O'Mara's default admissions  on remand.8            We  note,  however,  that  O'Mara  may  yet  move  to  permit            withdrawal of the admissions.  See Fed. R. Civ. P. 36(b).  We                                           ___            intimate no opinion  on how the  district court should  treat            such a motion if one is forthcoming.                        III.  Conclusion                            __________                      We need go  no further.   To the  extent that  Stow            advances  other claims, none require comment.  It suffices to            say that  we have considered  them all, and  summarily reject            them.   We add only that his request for declaratory judgment            is moot  because he has  been returned to  Massachusetts, see                                                                      ___            Preiser  v. Newkirk, 422 U.S. 395 (1975), and that the denial            _______     _______            of  his motion to file a further amended complaint was within            the court's discretion, see Foman v. Davis, 371 U.S. 178, 182                                    ___ _____    _____            (1962)  (holding that  leave to  amend may  be denied  if the            amendment would be futile).   Finally, the court did  not err            in  declining to appoint counsel.  See Cookish v. Cunningham,                                               ___ _______    __________            787  F.2d 1, 2 (1st  Cir. 1986) (explaining  that an indigent            litigant has no  constitutional right to  counsel in a  civil                                            ____________________            8.  For  clarity's sake,  we  note that  the  court need  not            consider the default admissions relating to  O'Mara's alleged            duty to return Stow to Massachusetts.  Given their ambiguity,            the  admissions do not  alter our conclusion  that O'Mara has            qualified immunity.  See Talley, 990 F.2d at 686.                                 ___ ______                                         -12-            case,  but  must  demonstrate  exceptional  circumstances  to            justify the appointment of counsel).                        Affirmed   in  part   and   remanded  for   further                      ___________________________________________________            proceedings.            ____________                                         -13-
