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Griffin v. Walter

United States District Court, D. New Hampshire

August 11, 2017

John R. Griffin, Jr.
v.
Jennifer Walters, Irena Catovic, Kevin Valenti, Mark Hastbacka, and Kent Smith[1]

          John R. Griffin, Jr., pro se Francis Charles Fredericks, Esq. John A. Curran, Esq. Robert J. Rabuck, Esq.

          REPORT AND RECOMMENDATION ON DOC. NOS. 29 AND 42

          Andrea K. Johnstone, United States Magistrate Judge

         Before the court is a motion to dismiss (Doc. No. 29) filed by defendants New Hampshire Department of Corrections ("DOC") Parole Officers Jennifer Walters, Irena Catovic, and Kevin Valenti ("State Defendants"). Griffin has objected. See Doc. No. 42. The motion to dismiss (Doc. Nos. 29) has been referred to the undersigned magistrate judge for a Report and Recommendation ("R&R") as to disposition. See LR 72.1. Additionally, as Griffin included a "Motion to Strike Defendants' Claim of Threat" as part of his objection (Doc. No. 42), Griffin's request to strike is also addressed in this R&R.

         Background[2]

         In March 2016, Griffin was paroled from a state prison sentence. While on parole in May 2016, Griffin mailed a letter ("May 2016 Letter"), addressed to Attorney Nicole Thorspecken, a prosecutor at the Hillsborough County Attorney's Office, regarding a state habeas proceeding he was litigating. Attorney Thorspecken's supervisor considered the May 2016 Letter to be threatening, [3] and referred the letter to the FBI for investigation.

         Griffin had been living at "Helping Hands" while on parole, until he was evicted on May 10, 2016, rendering him homeless.[4] DOC parole officers, unaware of the eviction, unsuccessfully attempted to find Griffin at Helping Hands on May 19, 2016. Griffin's Parole Officer Jennifer Walters swore out an affidavit on May 27, 2016, seeking a warrant for Griffin's arrest for two parole violations: failing to obtain the parole officer's permission before changing residence, and failing to be of good conduct by sending an "aggressive and threatening letter" to Attorney Thorspecken. N.H. Adult Parole Bd. ("APB") Aff. & Warrant, Griffin v. Nadeau, No. 17-cv-209-LM (D.N.H., filed May 30, 2017) (ECF No. 1, at 11). Parole officers arrested Griffin on June 1, 2016. See id.

         Griffin appeared personally and through appointed counsel at a June 21, 2016 parole revocation hearing. The APB revoked Griffin's parole, finding that he had not properly notified his parole officer about moving out of Helping Hands, see N.H. Admin. R. Par 401.20(b)(3) ("Parole Rule 3"), and that he had failed to be "of good behavior, " id. 401.02(b)(7) ("Parole Rule 7"). The APB deemed the May 2016 Letter to be "new criminal conduct/behavior, " in violation of Parole Rule 7. See APB, Results of Parole H'g, June 21, 2016, Nadeau, No. 17-cv-209-LM (ECF No. 1, at 12-13). In its decision revoking Griffin's parole, the APB specifically noted that Griffin had sent a letter to Attorney Thorspecken, including "comments and writings [that] were threatening in nature and bad conduct for a parolee." Id. (ECF No. 1, at 13).

         Griffin filed this action to challenge, as retaliatory and invalid, his parole revocation, and the investigations and arrest relating to the May 2016 Letter. This court conducted a preliminary review of Griffin's complaint and allowed a First Amendment retaliation claim to proceed in this action against state and federal agents, under 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narc. Agents, 403 U.S. 388 (1971), as follows:

Assistant Hillsborough County Attorney Kent Smith; DOC Parole Officers Jennifer Walters, Irena Catovic, and Kevin Valenti; and FBI Agent Mark Hastbacka initiated investigations, an arrest, and/or parole revocation proceedings against Griffin, in retaliation for Griffin's writing and mailing the May 2016 Letter, which was conduct protected by the First Amendment.

See Aug. 7, 2017 R&R (Doc. No. 67, at 3) (citing Jan. 25, 2017 R&R (Doc. No. 19) ("January 2 5 R&R"), approved by Feb. 24, 2017 Order (Doc. No. 32) ("February 24 Order")).

         Discussion

         I. Motion to Strike (Doc. No. 42)

         This court's local rules allow a party to move to strike material offered in support of, or in opposition to, any motion served on that party, within fourteen days of service. See LR 7.2(b). Rule 12(f) of the Federal Rules of Civil Procedure authorizes the court to strike from a "pleading" any "insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." A motion to dismiss is not a "pleading, " for purposes of a Rule 12(f) motion. Cf. Fed.R.Civ.P. 7(a) (listing pleadings). Furthermore, the State Defendants' arguments regarding the First Amendment are pertinent and material to Griffin's claims. Their arguments regarding the First Amendment and the May 2016 Letter do not comprise an insufficient defense, and are not colored with any words or other matters that could properly be stricken from the motion to dismiss. Accordingly, Griffin's request in Document No. 42, asking the court to strike the "threat" defense, should be denied.

         II. Motion to ...


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