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.
Elizabeth A. Lahey, Esq. Francis Charles Fredericks, Esq.
John A. Curran, Esq. Robert J. Rabuck, Esq.
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
the court is plaintiff John R. Griffin, Jr.'s
"Motion to Consider NH RSA 651-A:19 Effect of
Recommittal in Respect to Parole Board's Intent and
Actions" (Doc. No. 45). Griffin's motion asks this
court to find that the New Hampshire Adult Parole Board
("APB") decision of June 21, 2016, recommitting
Griffin to the New Hampshire State Prison for an extended
term, was inconsistent with New Hampshire Rev. Stat. Ann.
("RSA") § 651-A:19, and was an
"emotional-based" act taken in retaliation for
Griffin's letter-writing, conduct he alleges was
protected under the First Amendment. Doc. No. 45, at 3.
Defendants have not responded to this motion.
court construes plaintiff's motion (Doc. No. 45)
liberally as a motion to amend the complaint to join the APB
and its members as new defendants and to add a claim that the
June 21, 2016 decision to recommit Griffin for an extended
term was an adverse act, outside the appropriate legal
authority of the APB, which was taken in retaliation for
Griffin's exercise of his First Amendment rights. The
standard applied in considering this motion is set forth in
the August 7, 2017 Report and Recommendation
("R&R") (Doc. No. 67), at 3-5, which the
district judge approved in its August 30, 2017 Order (Doc.
court previously ruled in this case that the Heck
rule, derived from Heck v. Humphrey, 512 U.S. 477
(1994), barred Griffin's due process challenge to the
June 21, 2016 revocation of his parole. See Feb. 24,
2017 Order (Doc. No. 32) (approving Jan. 25, 2017 Report and
Recommendation ("R&R") (Doc. No. 19)). This
court has also ruled in this case that Griffin's First
Amendment retaliation claims, challenging his arrest and
prosecution for a parole violation, were barred by
Heck. See Oct. 13, 2017 Order (Doc. No. 84)
(approving Aug. 11, 2017 R&R (Doc. No. 72)). The same
reasoning applies with respect to Griffin's current
proposed complaint amendment, asserting that the APB's
June 21, 2016 decision to recommit Griffin to an extended
term was a retaliatory act that violated Griffin's First
June 21 decision to recommit Griffin to an extended term has
not been invalidated, and a favorable decision on that claim
would necessarily impugn the validity of the APB's
decision to re-incarcerate Griffin for an extended term, the
Heck rule precludes Griffin from litigating that
claim in this action. See White v. Gittens, 121 F.3d
803, 807 (1st Cir. 1997) (section 1983 claim challenging
validity of parole revocation under Due Process Clause was
barred by Heck as "any award of damages or
declaratory relief would seriously call into question the as
yet undisturbed validity of the state parole board's
action"). The motion (Doc. No. 45) to amend the
complaint to add a First Amendment retaliation claim relating
to the APB's decision, to recommit Griffin for an
extended term, should thus be denied as futile.
extent Griffin seeks to proceed on claims against the APB,
such claims are barred by the Eleventh Amendment. See
Town of Barnstable v. O'Connor, 786 F.3d 130, 138
(1st Cir. 2015); New Hampshire v. Ramsey, 366 F.3d
1, 14 (1st Cir. 2004). Individual parole board members are
shielded by absolute immunity from liability for damages for
their decision to recommit Griffin to an extend term of
incarceration. See Johnson v. R.I. Parole Bd.
Members, 815 F.2d 5, 6 (1st Cir. 1987) (per curiam);
Griffin v. Nadeau, No. 17-cv-209-LM, 2017 U.S. Dist.
LEXIS 154990, at *4-*6, 2017 WL 4457510, at *2-*3 (D.N.H.
Sept. 21, 2017) (ECF No. 8), R&R approved, No.
17-cv-209-LM, 2017 U.S. Dist. LEXIS 164332, 2017 WL 4443451
(D.N.H. Oct. 3, 2017) (ECF No. 10). Accordingly, neither the
APB nor any of its members is properly joined as a defendant
here, and the motion to join them (Doc. No. 45) should be
denied as futile.
foregoing reasons, the district judge should deny
Griffin's "Motion to Consider NH RSA 651-A:19 Effect
of Recommittal in Respect to Parole Board's Intent and
Actions" (Doc. No. 45). Any objections to this Report
and Recommendation must be filed within fourteen days of
receipt of this notice. See Fed.R.Civ.P. 72(b)(2).
The fourteen day period may be extended upon motion. Failure
to file objections within the specified time waives the right