United States District Court, D. New Hampshire
John R. Griffin, Jr.
Jennifer Walters, Irena Catovic, Kevin Valenti, Mark Hastbacka, and Kent Smith
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
K. Johnstone, United States Magistrate Judge
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.
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,
referred the letter to the FBI for investigation.
had been living at "Helping Hands" while on parole,
until he was evicted on May 10, 2016, rendering him
homeless. 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
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,
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
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")).
Motion to Strike (Doc. No. 42)
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.
Motion to ...