United States District Court, D. New Hampshire
Matthew W. Peters,
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Before the court is defendant's motion to dismiss (doc. no. 57) the Amended Complaint (doc. no. 53). Plaintiff, New Hampshire State Prison ("NHSP") inmate Matthew W. Peters, has objected. See Doc. No. 58. The motion to dismiss (doc. no. 57) should be granted in part, and otherwise denied, for reasons stated below.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, in evaluating a motion to dismiss, the court accepts the factual allegations in the complaint as true, construes reasonable inferences in plaintiff's favor, and determines whether the factual allegations state a claim upon which relief may be granted. Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014). As plaintiff is proceeding pro se here, his pleadings are construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
In considering whether the complaint states a claim, the court's scope of review is limited. The court may consider "facts and documents that are part of or incorporated into the complaint, '" as well as "documents incorporated by reference in [the complaint], matters of public record, and other matters susceptible to judicial notice.'" Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008) (citations omitted).
I. Equal Protection Claim
The motion to dismiss (doc. no. 57) is moot, in part, to the extent it seeks dismissal of the equal protection claim in the Amended Complaint, as the court dismissed that claim on December 17, 2015. See Order (doc. no. 52) (approving Report and Recommendations (doc. no. 49 and 50) issued December 1, 2015 ("R&R No. 49" and "R&R No. 50")). Further, in plaintiff's objection (doc. no. 58) to the instant motion to dismiss (doc. no. 57), plaintiff has "concede[d]" that the equal protection claim may be dismissed. Doc. No. 58, at 1. Therefore, the district judge should deny, as moot, the motion to dismiss, to the extent it seeks dismissal of the equal protection claim.
II. Due Process
Defendant has moved to dismiss the due process claim asserted in the Amended Complaint. This court previously dismissed the Amended Complaint's due process claim, in the form in which it had been construed by the magistrate judge, when the court approved R&R No. 50. See Order (doc. no. 52) (approving R&R No. 50).
Plaintiff's objection to the motion to dismiss (doc. no. 58) clarifies that he intended to assert a different type of due process claim than the one construed by the magistrate judge and dismissed by this court. Plaintiff clarifies that claim, as follows:
1. Defendants violated plaintiff's Fourteenth Amendment right to due process by failing to provide plaintiff with fair procedures for denouncing his affiliation with a security threat group ("STG"), when Peters's eligibility for earned time credits, under N.H. Rev. Stat. Ann. ("RSA") § 651-A:22-a and Department of Corrections ("DOC") Policy and Procedure Directive ("PPD") 5.11, require that he not be involved with an STG.
Under state law, inmates in the NHSP may receive reductions in their minimum and maximum sentences, called "earned time credits, " by completing various programs offered by the prison. See RSA § 651-A:22-a, I. Earned time credits can be earned while inmates are "in the least restrictive classifications of general population and minimum security." RSA § 651-A:22-a, III. ...