United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 19-2018
`
`EMORY SNELL,
`
`Plaintiff, Appellant,
`
`v.
`
`THOMAS NEVILLE, PATRICIA RUZE, MASSACHUSETTS DEPARTMENT OF
`CORRECTION, CAROL MICI, STEPHANIE COLLINS, LOIS RUSSO, DALE
`BISSONNETTE, DOUGLAS DEMOURA, JEFFREY J. QUICK, MONSERRATE
`QUINONES, and JOANN LYNDS,
`
`Defendants, Appellees,
`
`THOMAS DICKHAUT, Superintendent, THOMAS A. GROBLEWSKI, GREG A.
`POLADIAN, THERESA SMITH, ROBERT CONLEY, CLESELY M. GARCIA,
`PHILIP H. KONG, KEVIN ANAHORY, GENE CHAISSION, JOHN A. BELAIR,
`THOMAS DEMOURA, JANE ROE, and JOHN DOE,
`
`Defendants.
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Denise Casper, U.S. District Judge]
`
`
`
`Before
`
`Thompson and Kayatta, Circuit Judges.*
`
`
`
`
`
`
`
`
`
`
`
`*Judge Torruella heard oral argument in this matter and
`participated in the semble, but he did not participate in the
`issuance of the panel's opinion. The remaining two panelists
`therefore issued the opinion pursuant to 28 U.S.C. § 46(d).
`
`
`
`
`For the First Circuit
`
`
`
`
`No. 19-2018
`
`EMORY SNELL,
`
`Plaintiff, Appellant,
`
`v.
`
`THOMAS NEVILLE, PATRICIA RUZE, MASSACHUSETTS DEPARTMENT OF
`CORRECTION, CAROL MICI, STEPHANIE COLLINS, LOIS RUSSO, DALE
`BISSONNETTE, DOUGLAS DEMOURA, JEFFREY J. QUICK, MONSERRATE
`QUINONES, and JOANN LYNDS,
`
`Defendants, Appellees,
`
`THOMAS DICKHAUT, Superintendent, THOMAS A. GROBLEWSKI, GREG A.
`POLADIAN, THERESA SMITH, ROBERT CONLEY, CLESELY M. GARCIA,
`PHILIP H. KONG, KEVIN ANAHORY, GENE CHAISSION, JOHN A. BELAIR,
`THOMAS DEMOURA, JANE ROE, and JOHN DOE,
`
`Defendants.
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Denise Casper, U.S. District Judge]
`
`
`
`Before
`
`Thompson and Kayatta, Circuit Judges.*
`
`
`
`
`
`
`
`
`
`
`
`*Judge Torruella heard oral argument in this matter and
`participated in the semble, but he did not participate in the
`issuance of the panel's opinion. The remaining two panelists
`therefore issued the opinion pursuant to 28 U.S.C. § 46(d).
`
`
`
`
`
`Lucas I. Silva, with whom Sommer Wiss, Andrew C. Yost, and
`Foley Lardner LLP were on brief, for appellant.
`
`Mary Eiro-Bartevyan, Department of Correction Legal Division,
`Nancy Ankers White, Special Assistant Attorney General for
`appellees Thomas Neville, Massachusetts Department of Correction,
`Carol Mici, Stephanie Collins, Lois Russo, Dale Bissonnette,
`Douglas Demoura, Jeffrey Quick, Monserrate Quinones, and Joann
`Lynds.
`
`George J. Puddister IV, with whom Victor J. Koufman and Koufam
`& Frederick, LLP were on brief, for appellee Patricia Ruze.
`
`
`
`May 25, 2021
`
`
`
`
`
`
`
`
`
`
`THOMPSON, Circuit Judge. Americans are reputedly a
`
`litigious bunch, and Emory Snell, an inmate at MCI-Concord in
`
`Massachusetts, has greatly aided in keeping the federal and state
`
`judiciaries busy. In this lawsuit, one of at least 170 he has
`
`filed challenging his conviction and his prison conditions,
`
`Snell's legal focus is on a first-floor Lexis Nexis terminal and
`
`typewriter (collectively "the first-floor Terminal" or "the
`
`Terminal") where he spent two plus years conducting legal research
`
`and cranking out legal documents.1 Regrettably for Snell, prison
`
`officials nixed his habit upon learning he was using the resources
`
`without a diagnosed disability preventing him from climbing stairs
`
`to the second-floor law library. Not appreciating this purported
`
`lack of accommodation, Snell sued various prison officials as well
`
`as the Massachusetts Department of Correction (collectively, "DOC
`
`defendants"), and his prison physician, Dr. Patricia Ruze, for
`
`injunctive and declaratory relief and damages. Finding no merit
`
`to Snell's complaint, the district court granted summary judgment
`
`to all defendants. See Snell v. Mici, No. 16-cv-11643-DJC, 2019
`
`
`1 A Lexis Nexis terminal is a computer that allows users to
`access only the Lexis Nexis legal research services without getting
`into other parts of the internet.
`
`- 3 -
`
`
`
`WL 4303264 (D. Mass. Sept. 11, 2019). Snell appeals part of that
`
`order alleging several claims of error.2 Espying none, we affirm.3
`
`Background
`
`
`
`
`
`In order to understand the legal issues addressed in our
`
`decision, we find it necessary to provide the reader with a
`
`detailed background of events which triggered this appeal.
`
`Therefore, we ask the reader's patience as we soldier through the
`
`facts.
`
`
`2 Because Snell does not challenge the district court's grant
`of summary judgment for his other claims raised below, he has
`waived his right to appeal those counts, and we will not consider
`them. See Bekele v. Lyft, Inc., 918 F.3d 181, 186-87 (1st Cir.
`2019).
`
`3 Defendants raise a number of arguments about why we should
`affirm summary judgment, including qualified immunity, Snell's
`failure to plead sufficient facts proving the personal involvement
`of all defendants, and Snell's failure to exhaust his
`administrative remedies. Because we affirm summary judgment on
`other substantive grounds, we need not reach those arguments. See
`F.D.I.C. v. LeBlanc, 85 F.3d 815, 820 (1st Cir. 1996) (noting that
`we may affirm summary judgment on any independently sufficient
`ground); see also Mihos v. Swift, 358 F.3d 91, 98-99 (1st Cir.
`2004) (assuming qualified immunity is inapplicable does not equate
`to a victory for the plaintiff). Also, because we affirm summary
`judgment on all counts, we need not differentiate between the
`defendants' individual and official capacities insofar as those
`distinctions would otherwise matter for the analyses that follow.
`See, e.g., Parker v. Landry, 935 F.3d 9, 14 & n.3 (1st Cir. 2019)
`(claims pursuant to 42 U.S.C. § 1983 cannot apply to state entities
`or state employees in their official capacities); Bartolomeo v.
`Plymouth Cnty. House of Corr., 229 F.3d 1133, *1 (1st Cir. 2000)
`(per curiam) (assuming without deciding that individuals may be
`subject to personal liability under Title II of the ADA and Section
`504 of the Rehabilitation Act).
`
`- 4 -
`
`
`
`When a party appeals from a district court's grant of
`
`summary judgment, we describe the facts in the light most favorable
`
`to the non-moving party (here, Snell), so far, at least, as a
`
`reasonable review of the record obliges. See Nunes v. Mass. Dept.
`
`of Corr., 766 F.3d 136, 138 (1st Cir. 2014); see also Santiago–
`
`Ramos v. Autoridad de Energía Eléctrica de Puerto Rico, AEE, 834
`
`F.3d 103, 105 (1st Cir. 2016) (quoting Chaloult v. Interstate
`
`Brands Corp., 540 F.3d 64, 66 (1st Cir. 2008) ("drawing all
`
`inferences in" the non-movant's favor)).
`
`The Accommodation Process and Two-Tiered Library at MCI-Concord
`
`
`
`
`
`After a jury convicted Snell of the first-degree murder
`
`of his wife in 1995, he began serving a life without parole
`
`sentence in the Massachusetts prison system, eventually landing at
`
`the facility known as MCI-Concord in 2010. See Commonwealth v.
`
`Snell, 705 N.E.2d 236, 238-39 (Mass. 1999). Snell arrived there
`
`in less than stellar health. Amongst other ailments, he suffered
`
`knee and back pain, and had degenerative joint disease which
`
`limited his body's range of motion.4 A walking cane facilitated
`
`his mobility. In consequence, upon his confinement, he began to
`
`seek ways to better manage and endure his terms of incarceration.
`
`Therefore, before delving into the details of Snell's particular
`
`
`4 Degenerative joint disease, also known as osteoarthritis,
`is the deterioration of the skeleton's cartilage or bony
`structures.
`
`- 5 -
`
`
`
`claims, some background on MCI-Concord's protocols for servicing
`
`prisoners with physical disabilities is in order.
`
`During the time period relevant to this appeal,
`
`incarcerated persons like Snell had a couple of avenues to attain
`
`relief. First, inmates could seek reasonable accommodations from
`
`prison officials if they had physical or mental health disabilities
`
`which prevented them from engaging in the standard routines of
`
`prison life, such as a prison education or technical training
`
`program. See 103 DOC 620, https://www.mass.gov/doc/doc-620-
`
`special-health-care-practices/download;
`
`103
`
`DOC
`
`408.07,
`
`https://www.mass.gov/doc/doc-408-reasonable-accommodations-for-
`
`inmates/download.5 For example, an individual with hearing loss
`
`could request a hearing aid or a person with walking difficulties
`
`could request a wheelchair. An inmate did not need to have a
`
`medically documented disability to apply for such a reasonable
`
`accommodation. See 103 DOC 620.
`
`Second, inmates could also seek a "medical restriction"
`
`from a medical professional. For instance, if a prison physician
`
`advised an inmate not to climb stairs because such movement would
`
`be harmful to the person's health, the inmate would have a "no-
`
`stairs" medical restriction. A medical restriction traditionally
`
`
`5 During the period in which the defendants allegedly harmed
`Snell, a different version of the regulations was in effect, see
`103 DOC 207.04, but they are functionally equivalent for the
`purposes of our analyses.
`
`- 6 -
`
`
`
`lasted for a maximum of one year, after which a physician would
`
`have to renew it. But prison officials did accord indefinite
`
`restrictions in some instances for individuals diagnosed with
`
`long-term disabilities. A medical restriction, though, did not
`
`automatically translate into an accommodation.
`
`MCI-Concord followed prison regulations promulgated by
`
`the Department of Correction when deciding whether to grant a
`
`reasonable accommodation to an inmate, and Snell does not contend
`
`MCI-Concord ignored them. Inmates could request accommodations
`
`by: (1) asking any DOC staff member; (2) filling out a written
`
`accommodation request; or (3) asking medical staff for a
`
`restriction that the DOC defendants could translate into an
`
`accommodation. See 103 DOC 408.07(8). One of the DOC defendants,
`
`the facility's American with Disabilities Act ("ADA")6 coordinator,
`
`reviewed such requests, filed written proof of the accommodation
`
`(if granted), and provided written proof of the accommodation
`
`directly to the requesting inmate. The regulations required the
`
`DOC defendants to "[e]nsure that appropriate documentation
`
`
`6 The ADA protects individuals from facing discrimination
`based on any disability. Cleveland v. Policy Management Systems
`Corp., 526 U.S. 795, 801 (1999) ("The ADA seeks to eliminate
`unwarranted discrimination against disabled individuals in order
`. . . to guarantee those individuals equal opportunity . . . ..").
`We will provide more details about the law's specific protections
`as we get into the analyses.
`
`- 7 -
`
`
`
`concerning an inmate's reasonable accommodation(s) is maintained"
`
`in their records. 103 DOC 408.05.
`
`For requests related to medical needs, such as not
`
`climbing stairs, the ADA coordinator almost always consulted with
`
`medical staff before providing or denying the accommodation in
`
`writing. While the DOC defendants ordinarily deferred to a medical
`
`professional's judgment about what inmates needed, there were
`
`limits built into the regulations. Before implementing a requested
`
`accommodation, the DOC defendants, ever mindful of their
`
`overarching responsibility to maintain order and security within
`
`the prison confines, weighed risks including ensuring
`
`accommodations did not appear to give unfair preferential
`
`treatment to any particular inmate. See 103 DOC 408.07(8).
`
`The accommodation process mattered to Snell because of
`
`the prison layout. MCI-Concord has two libraries: the general
`
`library on the first floor, and, as mentioned, the law library on
`
`the second floor. The latter housed several Lexis Nexis terminals
`
`and typewriters for inmate use. The general library on the first
`
`floor also had the Terminal (which, recall, includes a typewriter),
`
`but DOC defendants installed that station as an accommodation for
`
`inmates with documented medical restrictions which hampered their
`
`ability to reach the second floor.7 With few exceptions, even
`
`
`7 MCI-Concord did not have an elevator that could reach the
`second-floor law library.
`
`- 8 -
`
`
`
`inmates with medical restrictions other than a no-stairs
`
`restriction did not have (or should not have had) an accommodation
`
`to access the Terminal according to prison rules.8 By prison
`
`formality, the librarian (who oversaw both the first floor and
`
`second-floor libraries) was charged with verifying an inmate's
`
`documented accommodation before permitting use of the Terminal.
`
`Without the appropriate accommodation, according to prison rules,
`
`the inmate should not have been allowed use of the Terminal.
`
`An Inmate's Litigious Medical History
`
`
`
`
`
`Soon after arriving at MCI-Concord, Snell's persistent
`
`health problems caused him to complain about having to climb stairs
`
`to get to various areas within the prison, including the law
`
`library. He sought (but did not get) a reasonable accommodation
`
`from prison officials to use the first-floor Terminal.9 The denial
`
`baffled Snell because when he was housed at a prior facility, he
`
`had been given an indefinite medical restriction for bottom tier
`
`housing (meaning he could reside in rooms on the first floor).
`
`The authorizing doctor reasoned Snell needed a bottom tier
`
`
`8 For example, inmates could receive an accommodation to use
`the first-floor Terminal if they could not be in crowded spaces
`due to medical conditions like Post-Traumatic Stress Disorder.
`
`9 Notwithstanding his request, Snell, in fact, worked in the
`second-floor law library as a clerk for almost a year, from October
`12, 2011, until October 2, 2012, during which time he successfully
`used the steps. A disciplinary infraction, unrelated to any
`appellate gripes, caused Snell to lose this position.
`
`- 9 -
`
`
`
`allowance because of his trouble negotiating stairs. From Snell's
`
`vantage, an indefinite bottom tier restriction and a no-stairs
`
`restriction were the same. However, DOC defendants clarified (in
`
`a deposition for this suit) that even prisoners with bottom tier
`
`restrictions ordinarily had to scale stairs; only prisoners with
`
`specific no-stairs restrictions could avoid the climb.
`
`Of import here, Snell maintains DOC defendants,
`
`specifically MCI-Concord's ADA coordinator, did in fact grant him
`
`a reasonable accommodation to use the first-floor Terminal at some
`
`point prior to July 2013 because of his problems climbing stairs.
`
`However, Snell has never produced any documentation to verify that
`
`he ever had such an accommodation.10 The DOC defendants say that's
`
`because in the timeframe pertinent to this litigation, he didn't.
`
`
`
`
`
`Stair mobility issues aside, Snell had other troubles.
`
`Various maladies, aches, and pains brought Snell to Dr. Ruze, his
`
`prison physician, up to fifteen times a year. By her thinking,
`
`Snell had obesity, a condition which she deemed a primary cause of
`
`his degenerative joint disease and likely a contributor to his
`
`hypertension and respiratory problems including sleep apnea. In
`
`Dr. Ruze's medical opinion, one with which Snell emphatically
`
`
`10 Snell alleges that he could not easily sort through his
`140+ boxes of legal materials (apparently, the boxes were changed,
`or their labels were destroyed). Snell nowhere contends, however,
`that the DOC defendants mishandled their own records, lost the
`accommodation form, failed to produce it in discovery, or that he
`even had such a form.
`
`- 10 -
`
`
`
`disagreed, Snell's degenerative joint disease did not
`
`substantially limit his ability to stand, to ambulate, or,
`
`importantly here, to climb stairs.11 She even opined that stair
`
`climbing would strengthen Snell's knees, aid him in weight loss,
`
`and improve some of his other ailments.
`
`
`
`
`
`No matter the disagreement over stair ambulation, Dr.
`
`Ruze and other medical personnel at MCI-Concord did not ignore
`
`Snell's medical needs; far from it. From 2010 to 2017, Snell,
`
`among other medical treatments, had x-rays of his knees and was
`
`referred to specialists for his orthopedic problems. By way of
`
`medical aids, prison medical personnel provided Snell with knee
`
`sleeves, anti-embolism stockings, back braces, medication for leg
`
`swelling, and the aforementioned cane. He was also afforded bottom
`
`bunk, in addition to bottom tier, restrictions, and given light
`
`work status. Despite all of the medical attention Snell received
`
`in those seven years, no medical or correctional personnel ever
`
`deemed a no-stairs restriction appropriate.
`
`
`
`It was only in late 2018, about one year after Dr. Ruze
`
`had departed her MCI-Concord prison job, that a doctor provided
`
`
`11 Dr. Ruze stuck to this belief. In 2014, Snell requested
`an elevator restriction that would permit him to take the elevator
`rather than the stairs to a second-floor meeting for veterans (in
`an area unconnected to the second-floor library site). Dr. Ruze
`denied the request, telling Snell that he could negotiate one or
`two flights of stairs on a weekly basis if he wanted to attend the
`meeting.
`
`- 11 -
`
`
`
`Snell with his long-sought no-stairs restriction. Dr. Churchville
`
`-- Dr. Ruze's replacement -- examined Snell twice in early October,
`
`and found him, at that time, walking slowly with visibly deformed
`
`knees, relying on his cane for support. Reporting eight-out-of-
`
`ten knee pain on November 7, 2018, Snell again requested a no-
`
`stairs restriction. On November 8, 2018, Dr. Churchville acceded,
`
`reasoning that Snell "was having more pain in his knee, [and] that
`
`stair climbing would aggravate that" pain. That same day prison
`
`officials transferred Snell to MCI-Shirley, a medium-security and
`
`accessible facility where he could readily get to the law library
`
`and more easily avail himself of other prison programs. Snell
`
`remained there as of oral argument.
`
`Inching His Way to This Litigation
`
`We backtrack further to explain how Snell got to our
`
`court. From July 2013 to October 2015, Snell used the first-floor
`
`Terminal near daily despite not having a no-stairs restriction or
`
`documented proof of an appropriate accommodation. Apparently,
`
`Snell told the librarian, who started working at MCI-Concord in
`
`September 2013,12 that he had an indefinite lower tier or no-stairs
`
`restriction. It seems the librarian never checked the story out.
`
`Additionally, since virtually no other inmates used the Terminal
`
`
`12 The record does not make clear who oversaw the library
`before September 2013, but the librarian key to this dispute worked
`at MCI-Concord at least through February 2019 when his deposition
`was taken.
`
`- 12 -
`
`
`
`and because Snell was on it so frequently, the librarian assumed
`
`Snell must have had an appropriate medical accommodation
`
`permitting him to conduct legal research on the first floor. At
`
`his deposition, Snell said he stopped using the second-floor law
`
`library most likely because of the pain in his knees from "having
`
`to climb up and down the stairs." For over two years no one ever
`
`challenged his presence at the first-floor Terminal, and, as
`
`mentioned earlier, Snell believed the DOC defendants had granted
`
`him permission to use it because of his ambulatory challenges.
`
`In August 2015, the prison librarian went on vacation.
`
`While he was away, the Lexis terminals throughout the facility
`
`temporarily shuttered. Also, with the librarian gone, Snell
`
`claimed he could not get to the typewriter (the librarian was the
`
`one who provided it to inmates). Claiming he had no access to
`
`needed legal resources, Snell filed a grievance with DOC defendants
`
`(citing his disability). A prison official (not one of the DOC
`
`defendants) promptly resolved Snell's grievance but we'll provide
`
`more details on how it got addressed later.
`
`Then, on October 9, 2015, Snell, apparently disturbed by
`
`some new issue concerning the amount of time he was being allowed
`
`to spend at the Terminal, submitted a new grievance seeking
`
`restoration of meaningful access to research time.13 In it, Snell
`
`
`13 Inmates could request additional time to use library
`resources, but Snell's grievance complained of a "wholesale"
`
`- 13 -
`
`
`
`describes his physical disabilities, including his "difficulty in
`
`climbing stairs," and the accommodations he claims were granted
`
`him, including permission to use the first-floor Terminal because
`
`of them. The new time constraint he says was an arbitrary
`
`limitation which interfered with his "constitutionally mandated
`
`adequate, effective and meaningful court access," and amounted to
`
`a revocation of a reasonable accommodation previously afforded him
`
`by the DOC defendants.
`
`Ten days later, the DOC defendants denied Snell's
`
`grievance regarding extra time, but they also noted that they were
`
`"unaware of an ADA [accommodation] granted to [Snell]," as Snell
`
`had described it, and added they "would be happy to review
`
`[Snell's] situation if [Snell] can provide the necessary
`
`documentation" to use the first-floor Terminal. Snell apparently
`
`did not. On October 29, 2015, the DOC defendants formally ended
`
`Snell's access to the Terminal. Thereafter, they denied Snell's
`
`string of grievances and appeals through the end of 2015 and into
`
`2016.
`
`
`denial of "added legal / meaningful court access" because MCI-
`Concord's policy apparently differed from other medium-security
`facilities, which, according to Snell, offered more legal research
`time to inmates. There is nothing in the record, other than this
`October 9, 2015 grievance, reflecting any attempt by Snell to
`request additional research time, and his briefs do not discuss
`the matter beyond this specific grievance.
`
`- 14 -
`
`
`
`Traipsing Away from the Prison Administrative Process
`
`With his access to the Terminal blocked by
`
`administrative determinations, Snell turned outward for
`
`assistance. On June 22, 2016, Prison Legal Services, a not-for-
`
`profit Massachusetts organization, got involved, sending the DOC
`
`defendants a letter demanding they resume Snell's reasonable
`
`accommodation (the Terminal) given his disability and what they
`
`believed to be an indefinite no-stairs medical restriction from
`
`1998. The DOC defendants promptly replied, reiterating the absence
`
`of such a restriction or the presence of any other indicator in
`
`Snell's medical record warranting such an accommodation. They
`
`further expressed they had consulted with Dr. Ruze who reported
`
`Snell should not have difficulty navigating stairs, especially
`
`with the use of a cane.
`
`Also on June 23, Dr. Ruze entered in Snell's medical
`
`file what she characterized as an "administration note" to update
`
`and to renew Snell's expiring medical restrictions (e.g., bottom
`
`tier, bottom bunk, light work status). She did this even though
`
`she did not examine him on that day. In her note, Dr. Ruze
`
`observed, based on her many interactions with Snell, that he was
`
`"ambulating well with a cane, could negotiate stairs, needs to
`
`move slowly, and has good balance." Again, she withheld the no-
`
`stairs restriction.
`
`- 15 -
`
`
`
`On August 9, 2016, Snell filed a pro se complaint
`
`challenging, at its core, the termination of his access to the
`
`first-floor Terminal. The complaint was later amended after court-
`
`appointed counsel entered the scene.14 Eventually, all defendants
`
`moved for summary judgment and, after taking the matter under
`
`advisement, the district court ruled in favor of the defendants.
`
`Snell timely appealed and here we are.
`
`Discussion
`
`
`
`
`
`To repeat, Snell's legal fight clearly centers around
`
`his loss of access to the first-floor Terminal, and he advances
`
`several arguments here as to why the district court erred by
`
`granting summary judgment to the defendants. First, Snell contends
`
`that contrary to the district court's preliminary determination,
`
`his appeals for injunctive and declaratory relief are not moot.
`
`Second, Snell argues the DOC defendants and Dr. Ruze retaliated
`
`against him in violation of Title V of the ADA (42 U.S.C. § 12203)
`
`essentially because of his proclivity for filing lawsuits and
`
`grievances. Third, Snell alleges that precluding him from using
`
`
`14 The seven-count amended complaint alleged violation of the
`Eighth Amendment (Count I); violation of the Fourteenth Amendment
`(Count II); violation of the Fifth Amendment (Count III); violation
`of art. 114 of the Massachusetts Declaration of Rights (Count IV);
`violation of the ADA's anti-retaliation provision, 42 U.S.C.
`§ 12203 (Count VI); and two claims solely against the DOC
`defendants for violations of Title II of the ADA, 42 U.S.C.
`§§ 12132, 12203, and Rehabilitation Act, 29 U.S.C § 794 (Counts V
`and VII). As noted earlier, Snell only challenges the grant of
`summary judgment on some claims.
`
`- 16 -
`
`
`
`the Terminal was cruel and unusual punishment in violation of the
`
`Eighth Amendment because the defendants, knowing stair climbing
`
`aggravated Snell's maladies, made him do it anyway if he wished to
`
`exercise his right to use the law library. Fourth, Snell claims
`
`the DOC defendants discriminated against him on account of his
`
`disability by withholding a reasonable accommodation in violation
`
`of Title II of the ADA (42 U.S.C. § 12132), the Rehabilitation Act
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`of 1973 (29 U.S.C. § 794), and art. 114 of the Massachusetts
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`Declaration of Rights (he does not appeal summary judgment against
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`Dr. Ruze on this count).
`
`The DOC defendants say the district court got it just
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`right and appropriately denied Snell the relief he sought. They
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`argue here, as they did below, that they never discriminated or
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`retaliated against Snell -- anything but. Rather, they "reasonably
`
`relied upon the [then extant] clinical judgment of Dr. Ruze" and
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`others in determining Snell could make his way to the second-floor
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`law library. Dr. Ruze, for her part, says she provided medically
`
`adequate care, was never indifferent to Snell's needs, and never
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`retaliated against him. We will first take up Snell's mootness
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`claims before addressing each of Snell's remaining challenges.
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`A. Whether Snell's Appeals Matter Anymore (Mootness)
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`
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`
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`Delays within the legal system sometimes result in the
`
`resolution of a plaintiff's injuries without courts having to be
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`significantly involved. In such circumstances, we say the
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`- 17 -
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`
`
`plaintiff's arguments are moot. See Campbell-Ewald Co. v. Gomez,
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`577 U.S. 153, 160-61 (2016); Murphy v. Hunt, 455 U.S. 478, 481
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`(1982) (appeal becomes moot "when the issues presented are no
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`longer 'live' or the parties lack a legally cognizable interest in
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`the outcome.") (citation omitted). The district court concluded
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`that Snell's transfer to the MCI-Shirley facility mooted his claims
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`for injunctive and declaratory relief because Snell no longer
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`needed a reasonable accommodation to access legal research
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`materials and the defendants no longer required him to climb
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`stairs. Snell thinks the district court erred because the harms
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`he suffered while at MCI-Concord could happen again in the future,
`
`causing him once again to be transferred to another non-accessible
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`prison where, without a current no-stairs restriction, he will be
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`forced to climb stairs.
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`Because mootness touches upon jurisdictional issues
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`(i.e., whether we can even hear the merits), we address it before
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`his substantive claims, see Manguriu v. Lynch, 794 F.3d 119, 121
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`(1st Cir. 2015), and we review the district court's decision upon
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`a clean slate, see Méndez-Soto v. Rodríguez, 448 F.3d 12, 14-15
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`(1st Cir. 2006).
`
`
`
`
`
`An inmate generally loses the right to challenge "prison
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`conditions or policies" at a particular facility when he transfers
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`or leaves that prison because his complaints would no longer have
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`any substantial impact on his life. Ford v. Bender, 768 F.3d 15,
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`- 18 -
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`
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`29 (1st Cir. 2014) (citing Incumaa v. Ozmint, 507 F.3d 281, 286-
`
`87 (4th Cir. 2007) ("[C]ourts, including our own, have held that
`
`the transfer of an inmate from a unit or location where he is
`
`subject to the challenged policy, practice, or condition, to a
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`different unit or location where he is no longer subject to the
`
`challenged policy, practice, or condition moots his claims for
`
`injunctive and declaratory relief, even if a claim for money
`
`damages survives.")). Here, once prison officials transferred
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`Snell to MCI-Shirley, an accessible facility which made available
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`to Snell, without impediment, appropriate prison legal resources,
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`Snell could no longer allege a continuing injury remediable by
`
`injunctive or declaratory relief. See id.
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`However, there is a way for inmates to keep their
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`declaratory and injunctive relief claims alive after they leave
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`the prison in which the alleged harm occurred. If an inmate can
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`show the challenged policies are "capable of repetition, yet
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`evading review," then he can escape mootness. Ford, 768 F.3d at
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`30. The exception applies where: (1) the challenged action did
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`not last long enough for the parties to litigate the harm before
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`it ended; and (2) there is a reasonable expectation that the
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`complaining party will endure the same allegedly harmful action at
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`some point in the future. See Barr v. Galvin, 626 F.3d 99, 105
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`(1st Cir. 2010) (quoting FEC v. Wis. Right to Life, Inc., 551 U.S.
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`449, 462 (2007)).
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`- 19 -
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`
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`
`
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`We assume Snell's circumstances satisfy the first prong
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`and proceed to the second. In support thereof, Snell points to
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`systemic imperfections in the prison medical review process for
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`updating and renewing medical restrictions, and to his many battles
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`with DOC defendants in pursuit of a no-stairs restriction.15
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`Hammering the point, Snell tells us his no-stairs restriction from
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`Dr. Churchville expired in November 2019 without being renewed.
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`With this combination of concerns, Snell fears DOC defendants will
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`transfer him out of MCI-Shirley, a place where the absence of the
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`restriction does not affect his health.
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`The problem with Snell's argument is that he never
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`references evidence of problems so severe as would amount to a
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`systemically dysfunctional review scheme. Simply because the
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`medical review process, at times, has glitches, and because Snell's
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`no-stairs restriction has expired, does not mean Snell would not,
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`going forward, receive all appropriate restrictions and
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`accommodations if placed in a non-accessible facility. This is so
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`particularly given the documented degenerative changes to his
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`physical health, which the DOC defendants have acknowledged and
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`addressed. Further, Snell has remained at MCI-Shirley since
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`November 2018 and any uncertainty about how Snell might be later
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`medically evaluated or later housed does not suggest a reasonable
`
`
`15 Snell often had his restrictions renewed annually, but the
`renewal process was far from perfect, let alone automatic.
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`- 20 -
`
`
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`likelihood of repetition. See Hunt, 455 U.S. at 482 ("[M]ere
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`physical or theoretical possibility" of reoccurrence are not
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`enough and "[r]ather, . . . there must be a 'reasonable
`
`expectation' or a 'demonstrated probability' that the same
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`controversy will" happen again to the "same complain[ant]")
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`(quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per
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`curiam)); see also Ford, 768 F.3d at 30; Manguriu, 794 F.3d at 121
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`(assessing agency actions outside record when analyzing mootness).
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`As for Dr. Ruze, she no longer works as a contractor for
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`the Massachusetts Department of Correction and therefore has no
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`further medical responsibility for Snell; injunctive and
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`declaratory relief aimed at her would be of no avail. See, e.g.,
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`ACLU of Mass. v. U.S. Conf. of Catholic Bishops, 705 F.3d 44, 53
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`(1st Cir. 2013) (once contract expired, nothing to enjoin).
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`Accordingly, we affirm the district court's decision to
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`declare moot the claims for injunctive and declaratory relief and
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`turn now to Snell's remaining claims for damages against the
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`defendants, claims which survive because his transfer out of MCI-
`
`Concord does not erase any injury he may have suffered while he
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`was there. See Ford, 768 F.3d at 29 (quoting Incumaa, 507 F.3d at
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`287).
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`B. Standard of Review for Summary Judgment Claims
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`
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`
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`Appellants who lose at summary judgment get the benefit
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`of what we call de novo review, which is where we examine the
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`- 21 -
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`
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`entire record afresh to determine whether the law required the
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`moving party -- here the defendants -- to win. See Nunes, 766
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`F.3d at 142. We will agree the defendants should have won if "no
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`genuine dispute as to any material fact" exists in the record, id.
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`(quoting Fed. R. Civ. Pro. 56(a)), and the movants are entitled to
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`judgment as a matter of law, see Mason v. Telefunken Semiconductors
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`Am., LLC, 797 F.3d 33, 37-38 (1st Cir. 2015). If the non-moving
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`party (Snell) can point to record evidence allowing a reasonable
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`jury to return a verdict in his favor, then we would say there is
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`a genuine dispute of material fact and the district court
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`erroneously granted summary judgment. See Perry v. Roy, 782 F.3d
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`73, 78 (1st Cir. 2015); see also Enica v. Principi, 544 F.3d 328,
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`336 (1st Cir. 2008). That evidence, however, cannot "rely[] on
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`improbable
`
`inferences,
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`conclusory
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`allegations,
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`or
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`rank
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`speculation." Enica, 544 F.3d at 336 (quoting Ingram v. Brink's,
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`Inc., 414 F.3d 222, 228–29 (1st Cir. 2005)).
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`C. Retaliation on Account of Litigation
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`
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