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Stow v. McGrath

United States District Court, D. New Hampshire

October 13, 2017

Weston J. Stow
v.
Robert P. McGrath et al.[1]

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone, United States Magistrate Judge.

         Seeking declaratory, injunctive, and monetary relief, and invoking 42 U.S.C. §§ 1983, 1985(1) & 1986, 18 U.S.C. § 242, 28 U.S.C. § 1367, and N.H. Rev. Stat. Ann. ("RSA") § 491:22, plaintiff Weston J. Stow has filed a complaint (Doc. No. 1) and an amended complaint (Doc. Nos. 28, 29, 30). The court deems the amended complaint (Doc. Nos. 28, 29, 30) to be the operative complaint in this matter and subjects it to preliminary review, pursuant to 28 U.S.C. § l9l5A(a) and LR 4.3(d)(1), taking the assertions in Document Nos. 1, 5-8, 10-13, 15-26, 28-38, 41, 42, 46, 47, 49, 52-55, and 57-60, to be addenda to the amended complaint for purposes of preliminary review.

         Also before the court for consideration are Stow's "Motion for Certification for Constitutional Challenge of State Statutes" (Doc. No. 25), "Motion Presenting Clarification of Any Required Exhaustion of Remedies" (Doc. No. 35), "Motion for Declaratory Judgment Pursuant to 28 USC 2201, Fed.R.Civ.P. 57" (Doc. No. 38), "Motion Regarding Supplemental Jurisdiction Specifics" (Doc. No. 42), "Motion to Remove Sr. Assistant Atty. Gen. Lynmarie C. Cusack as Named Defendant from Case" (Doc. No. 52), and "Motion Request to Submit a Memorandum of Law" (Doc. No. 53). These motions are addressed in this Report and Recommendation ("R&R").

         Background

         I. Transfer from NHSP to NCF

         In early 2016, Stow was incarcerated in the Special Housing Unit ("SHU") at the New Hampshire State Prison ("NHSP"). While Stow was housed in SHU, he was taking daily prescription heart medication. In February 2016, Stow's heart medication ran out and was not timely refilled, as no SHU officer picked up the prescription from the NHSP pharmacy for the weekend. Stow complained about the failure to timely refill his prescription through the New Hampshire Department of Corrections ("DOC") administrative grievance process.

         After Stow had filed several Inmate Request Slips ("IRSs"), Stow was called into an office in SHU, where Sgt. Randy Inman and another officer had Stow's IRSs. Inman asked Stow if he thought that by writing the IRSs that he would get Inman in trouble. The officers advised Stow to come to the unit officers with any medication concerns in the future, and asked Stow if he still wanted his IRSs processed. Stow said that he did want the IRSs processed. After his conversation with Inman, Stow was under the impression that the SHU Unit Manager, Robert McGrath, was agitated and offended by Stow's filing of the IRSs.

         As a result of Stow's administrative complaints, NHSP Maj. Fouts looked into the medication refill issue, and instituted procedures to insure that no further lapse in necessary daily medications would occur at SH U.Shortly after Stow filed his complaints about the prescriptions, McGrath told Stow: "You made a big mistake, if I get a clean shot at you I'm going to take it." Stow believes that McGrath made that statement because, Stow presumes, McGrath had been subject to negative consequences for having allowed Stow's medications to lapse.

         Stow alleges that McGrath, NHSP Lt. Leo Lirette, and NHSP Sgt. Edward Hardy caused Stow to be transferred to the Northern New Hampshire Correctional Facility ("NCF") on March 30, 2016 shortly after, and in retaliation for, those administrative complaints. As a result of his transfer to NCF, Stow lost his kitchen job at the NHSP, at which he was making approximately ninety dollars per month. At NCF, Stow was placed on "no job available" status, and was making only seventeen dollars per month until he got a job in the NCF kitchen, where he made between forty and sixty dollars per month.

         Additionally, Stow states that the conditions of confinement at NCF were worse than those at the NHSP, as Stow was housed in a dayroom at NCF where the lights were on all night. Additionally, at NCF, Stow had less privacy, quiet, fresh air, outdoor recreation, and library time than he did at the NHSP. Stow claims that he suffered anxiety and emotional distress as a result of his transfer to NCF and the attendant worsening of his job, pay, and conditions of confinement.

         At some point, McGrath told Stow that his prescription refill complaints had nothing to do with his transfer to NCF. McGrath told Stow that McGrath, Lirette, and Hardy had decided to move Stow to NCF, and gave Stow different reasons at different times for the move, including: Stow's administrative complaints concerning health risks Stow might suffer due to a broken ventilation system in SHU; the safety and security requirements of the institution; for no reason; and because two of Stow's cellmates had asked to be moved out of Stow's cell on SHU within a short period of time. Lirette later told Stow that he didn't know why Stow had been moved. DOC Classifications Administrator Kim Lacasse told Stow that he was moved because he hadn't been at NCF in years, and it was time for a change.

         Stow states that, once at NCF, he made multiple requests to be returned to the NHSP. In response to those requests, Lirette told Stow that he would charge Stow with a disciplinary offense for abusing the grievance process if Stow continued to request a transfer back to the NHSP. Stow asserts that Lirette also failed to answer certain questions Stow had posed to Lirette in the IRSs regarding his transfer requests.

         In September 2016, Stow sent letters of complaint to New Hampshire State Police ("State Police") liaison to the NHSP, Det. Sloper, and sent an IRS to NHSP Investigations Unit Chief M. Marchand, asking them to investigate the conduct of McGrath, Lirette, and Hardy in relation to Stow's transfer and administrative grievances, to make a determination as to whether probable cause for criminal acts by those officers could be established. Marchand was later replaced by Investigations Unit Chief Dinsmoore, who Stow asserts had constructive knowledge of the IRS Stow had sent to Marchand. Stow also sent the same requests to other state, county, and local officials, including Governor Chris Sununu, New Hampshire Department of Safety Commissioner John J. Barthelmes, State Police Director Col. Robert Quinn, State Police Troop D Commander Lt. Gregory Ferry, Merrimack County Sheriff Scott E. Hilliard, former Concord Police Department ("CPD") Chief John Duval, and CPD Chief Bradley C. Osgood. Stow asserts that none of these individuals responded to Stow or determined whether there was probable cause to believe that McGrath, Lirette, or Hardy committed any crime.

         Stow states that McGrath, Lirette, and Hardy have failed to comply with DOC policies as well as their oaths of office, and that they must be fired. Stow alleges that NHSP Warden Michael Zenk refused to fire them, and that DOC Commissioner Wrenn, in turn, refused to terminate those officers and Zenk. Stow contends that Zenk's and Wrenn's refusal to do so constituted a violation of state law and Zenk's and Wrenn's oath of office.

         II. Law Library

         Stow alleges that in September 2016, after his transfer to NCF, he filed a lawsuit in the New Hampshire Superior Court. While that matter was pending, Stow claims that NCF law librarian Angela Poulin erroneously refused Stow extended law library hours for the month of April 2017, although extended hours are generally afforded to prisoners with open court cases, as Poulin believed that Stow's Superior Court case had been dismissed. Stow claims that Poulin failed to follow prison policy that required her to verify Stow's assertion that he had an active case in the state courts. Stow's extended law library time was reinstated in May 2017.

         Stow filed a complaint with NCF Programs Director Sue Young about Poulin denying him extended law library time in April 2017. Another NCF employee, Dr. Anne Davis, referred Stow's complaint to John Perkins, Poulin's supervisor. Stow complains that both Poulin and Davis failed to answer questions Stow had posed to them in IRSs.

         After receiving Stow's IRSs, Perkins ordered Stow not to file further complaints concerning his extended law library time, and that if Stow continued to file administrative complaints on that issue, Perkins would charge Stow with a disciplinary infraction for violating a direct order. Stow asserts that a disciplinary violation would render him ineligible for a once-a-year earned privilege that allows prisoners to purchase various personal and food items at a reduced price.

         Stow states that Perkins and Poulin have failed to comply with DOC policies as well as their oaths of office, and that they were thus subject to mandatory termination. Wrenn has refused Stow's request that Wrenn terminate Perkins and Poulin. Stow contends that Wrenn's refusal to do so constitutes a violation of state law and Wrenn's oath of office.

         III. Earned Time Credit

         Stow alleges that, since he has been incarcerated at the DOC, he has received two Associates Degrees from Ashworth University, which he states is fully accredited by the Distance and Education Training Council ("DETC"), an accrediting agency recognized by the United States Department of Education. Stow alleges that DOC Policy and Procedure Directive ("PPD") 5.11, an administrative policy that provides inmates who earn Associates Degrees during their incarceration with earned time credit against their sentence, allows such credit in the event an inmate earns an Associates Degree from an institution accredited by an exclusive list of accrediting agencies. That list does not include the DETC. Accordingly, Stow claims that PPD 5.11, by its terms, does not allow him to obtain earned time credit for his Associates Degrees.

         Stow states that on June 6, 2017, he asked DOC Assistant Commissioner Helen Hanks to recognize the accreditation of his college and thus approve him for earned time credit for his Associates Degrees. Hanks advised Stow that she had asked Stow's case manager to provide her with copies of Stow's degrees so that she can make a decision on his request.

         IV. Sexual Offender Treatment Program

         Kim Marsh, the DOC Sexual Offender Treatment Program ("SOTP") Director, denied Stow's request for admittance to the SOTP, stating that Stow will not be considered for the program until he is serving his last consecutive sentence. Stow states that other inmates have been admitted to the SOTP before they served their last consecutive sentence. Stow claims that the fact that he has not yet completed the SOTP may inhibit his ability to obtain meaningful state court review of any motion to suspend sentence that he may file in the Superior Court.

         V. Consecutive Sentences

         A. Original Sentence

         Stow was sentenced in the state Superior Court, in 1991, to five consecutive 15 year prison terms, and other shorter consecutive sentences, for an aggregated sentence of 41-82 years, which he began to serve in 2003, after he completed a prison sentence in Massachusetts. Stow asserts that, pursuant to the sentencing statutes under which he was sentenced, and/or that were in effect at the time of his criminal offenses, the Superior Court did not have the authority to impose consecutive sentences on him.

         B. Parole

         Stow asserts that the DOC Adult Parole Board ("APB"), on two occasions, in 2010 and 2014, granted him parole from the sentence he was then serving to his next consecutive sentence. Stow has not been granted parole to the community. Stow claims that under the sentencing laws and prison policies that existed at the time he was sentenced, the APB did not have the authority to parole him to a consecutive sentence, and thus erroneously failed to grant him parole to the community.

         Claims[2]

         Stow has asserted the following claims in this action:

         1. Defendants McGrath, Lirette, and Hardy, acting individually and in conspiracy with one another, caused Stow to be transferred from the NHSP to NCF on March 30, 2016, in retaliation for Stow's administrative complaints about medication refill procedures and inadequate ventilation on his housing unit, causing Stow to lose his NHSP kitchen job, to have his pay decreased, and subjecting Stow to adverse conditions of confinement, embarrassment, and a loss of dignity, when other inmates who had made similar administrative complaints were not transferred to NCF and did not lose their prison jobs, in violation of:

a. Stow's First Amendment rights to free speech and to petition the government for a redress of grievances, rendering those defendants liable for damages and injunctive relief under 42 U.S.C. § 1983;
b. Stow's Fourteenth Amendment rights to:
i. due process, and
ii. equal protection;
c. Stow's rights to pursue and obtain happiness, enjoy life, and possess property, guaranteed by Pt. 1, Art. 2 of the New Hampshire Constitution;
d. state common law, rendering defendants liable for damages for:
i. conspiracy,
ii. malicious abuse of process,
iii. malfeasance in public office,
iv. misfeasance in public office,
v. negligence, and
vi. tortious interference with contractual relations;
e. state and federal criminal law; and
f. prison policy.

         2. Defendant McGrath threatened Stow with bodily harm by stating "You've made a big mistake, if I get a clean shot at you I'm going to take it, " in retaliation for Stow's administrative complaints about medication refill procedures and inadequate ventilation on his housing unit, in violation of:

a. Stow's First Amendment rights to free speech and to petition the government for a redress of grievances, rendering defendant liable for damages and injunctive relief under 42 U.S.C. § 1983;
b. Stow's Fourteenth Amendment rights to:
i. due process, and
ii. equal protection;
c. state common law, rendering defendant liable for damages for:Z
i. malicious abuse of process,
ii. malfeasance in public office, and
iii. misfeasance in public office;
d. state and federal criminal law; and
e. prison policy.

         3. Defendants McGrath, Lirette, Perkins, and Poulin, made false statements, orally and/or in writing, to Stow and others, concerning the reasons Stow was moved to NCF, the circumstances surrounding denying Stow extended law library time, and McGrath's prior involvement in civil lawsuits, in violation of:

a. Stow's First Amendment rights to free speech and to petition the government for a redress of grievances;
b. Stow's Fourteenth Amendment rights to:
i. due process, and
ii. equal protection;
c. state common law, rendering defendants liable for:
i. malicious abuse of process,
ii. malfeasance in public office,
iii. misfeasance in public office,
iv. negligence,
v. deceit, vi. intentional misrepresentation,
vii. slander, and
viii. obstruction of justice;
d. state and federal criminal law; and
e. prison policy.

         4. Defendants McGrath, Inman, Lirette, Perkins, Poulin, and Davis failed to answer some of Stow's IRSs in compliance with the deadlines set forth by prison policy, failed to answer some of Stow's IRSs at all, failed to answer questions Stow had posed within IRSs, or provided inappropriate or nonresponsive statements in response to Stow's IRSs, in violation of:

a. Stow's First Amendment rights to free speech and to petition the government for a ...

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