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Fernandez v. State

United States District Court, D. New Hampshire

December 4, 2017

Kevin Fernandez
v.
State of Nevada et al.[1]

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Before the court is New Hampshire State Prison inmate Kevin Fernandez's complaint (Doc. No. 1) under 42 U.S.C. § 1983. The complaint (Doc. No. 1) is before this court for preliminary review, pursuant to 28 U.S.C. § l9l5A(a) and LR 4.3(d)(1). Also before the court are plaintiff's motions for: a temporary restraining order and preliminary injunction (Doc. No. 3), the issuance of summonses (Doc. No. 4), and an extension of the deadline to serve defendants (Doc. No. 15).

         Preliminary Review

         I. Standard

         In determining whether a pro se pleading states a claim, the court construes the pleading liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal conclusions, the court considers whether the factual content in the pleading and inferences reasonably drawn therefrom, taken as true, state a claim to relief. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) .

         II. Background[2]

         A. Classification

         On July 16, 2014, Fernandez entered into a settlement agreement ("Settlement Agreement") with the State of Nevada. The Settlement Agreement resolved six lawsuits Fernandez had filed in the District of Nevada, and one appeal Fernandez had filed in the Ninth Circuit Court of Appeals.[3] See Global Settlement Agreement (Doc. No. 3-1, at 70-77) . Fernandez alleges that, as part of the Settlement Agreement, Nevada and the NDOC agreed to solicit at least five states to which Nevada could transfer Fernandez under the Interstate Corrections Compact ("ICC"), [4] to determine if any of those states would accept a transfer of Fernandez. Fernandez was ultimately transferred to the NHSP on November 9, 2015, where he remains.

         On December 9, 2015, Fernandez was classified at the NHSP as a "C-3" medium custody inmate. At the end of February 2016, Fernandez was assessed for reclassification to "C-2" minimum custody status but was denied C-2 status because he would not be paroled to live in New Hampshire and does not have family in New Hampshire.

         On March 3, 2016, Fernandez initiated an administrative appeal of the February 2016 denial of C-2 status. On March 7, 2016, NHDOC Classifications Supervisor Kimberly LaCasse told Fernandez that he would not be reclassified as a C-2 inmate in New Hampshire if he was not paroling to New Hampshire, as C-2 inmates are eligible for placement in a halfway house, and those beds were needed for inmates who were going to transition to parole in New Hampshire. LaCasse also told Fernandez "that if he was unhappy with the decision he could simply go back to Nevada." Doc. No. 1, at 11. Fernandez appealed the denial of his classification appeal to the NHDOC Commissioner on March 8, 2016, but received no response. On April 1, 2016, LaCasse directed that Fernandez to be returned to Nevada. For reasons that are not stated in the record, Fernandez was not returned to Nevada.

         On August 5, 2016, Fernandez was again evaluated for C-2 status at the NHSP. With the approval of defendants NHDOC Unit Manager R. McGrath, NHDOC Case Manager G. McDonough, and LaCasse, Fernandez was conditionally granted C-2 status. The conditions of attaining C-2 status included Nevada's consent to Fernandez's placement on minimum custody status. Fernandez contacted NDOC ICC Coordinator James Maxey and NDOC Correctional Program Supervisor Nancy Flores, and advised them that he would take legal action against them if they denied consent to his reclassification to C-2 status at the NHDOC.

         In September 2016, Fernandez provided his parole plan and information about his family to LaCasse and advised LaCasse that Nevada's approval for his transfer to C-2 status was not necessary under the ICC. LaCasse responded that Fernandez could not be paroled in New Hampshire if he had no family in the state, and thus could not be placed in a halfway house, but that with Nevada's permission, he still could be reclassified as a C-2 minimum security inmate.

         On October 4, 2016, defendant Maxey advised NHDOC employee Jensine Hilliard "that Nevada law prohibited him from approving C-2 status for Plaintiff" pursuant to Nev. Rev. Stat. §§ ("NRS") 176A.780, 209.481.[5] On October 12, 2016, Fernandez was reclassified to "C-3" status. Fernandez alleges that the sole reason for his reclassification is that Nevada had not consented to his reclassification to C-2.

         On October 28, 2016, Fernandez administratively appealed his reclassification to C-3 status. On November 2 or 3, 2016, LaCasse again advised Fernandez that if he is unhappy with the NHDOCs classification decision he could return to Nevada. Fernandez states he understood LaCasse's statement as a threat to return him to Nevada if he continued to complain about being denied C-2 status.

         Fernandez filed an appeal with the NDOC, appealing the withholding of consent to Fernandez receiving C-2 status, but did not receive a response. Fernandez petitioned NHDOC officials for reconsideration of the denial of C-2 status. LaCasse declined to reconsider the decision without Nevada's approval.

         On April 3, 2017, Fernandez was again denied C-2 status by NHDOC officials due to the NDOC's lack of consent to that security classification. As a result of not being reclassified to C-2 status, Fernandez alleges that he did not obtain C-2 privileges and better conditions of confinement. Further, Fernandez claims that obtaining C-2 status would have increased his opportunity to obtain parole.

         B. Legal Materials

         On December 2, 2015, several weeks after Fernandez was transferred to the NHDOC, the NDOC mailed Fernandez's fifteen boxes of legal material to him at the NHDOC. Those materials contained documents concerning Fernandez's criminal history, parole records, research materials and civil actions that were either active or were the subject of settlement agreements.

         Shortly after Fernandez's legal materials arrived in New Hampshire, NHDOC Maj. Fouts advised Fernandez that his legal materials would have to be sent out of the NHSP, as they would not be stored at that facility. On December 16, 2015, McGrath and NHDOC Lt. Brown gave Fernandez a yellow tote in which he could keep legal materials. When Fernandez advised NHDOC officials that the NDOC was supposed to hold onto his legal materials, those officials arranged for Fernandez's legal materials to be stored in the property room until the issue was resolved. NHDOC officials then contacted the NDOC to advise them that the cost of mailing the materials to the NDOC was over $1100, which would have to be paid, in advance, by the NDOC. In January 2016, NHDOC Cpl. Sauerheber advised Fernandez that the NDOC had agreed to pay for Fernandez's legal materials to be mailed there. Fernandez confirmed that information with Flores on February 4, 2016. On February 26, 2016, however, Flores wrote to Fernandez and stated that the NDOC would neither pay for mail to, nor store his legal files at, the NDOC. See Feb. 26, 2016 Letter (Doc. No. 3-1, at 6) .

         On February 29, 2016, Fernandez sent an Inmate Request Slip ("IRS") to Sauerheber to grieve the NDOCs refusal to pay for shipping and storage of his legal materials, and asked that the NHDOC maintain his files until he could exhaust his remedies. See Feb. 29, 2016 IRS (Doc. No. 3-1, at 7). Sauerheber agreed, conditioned on administrative approval. See Mar. 3, 2016 IRS Resp. (Doc. No. 3-1, at 7). On February 29, 2016, Fernandez also wrote to the property room and to NHSP Warden Michael Zenk, stating that "any attempt to destroy, remove, or deny plaintiff his boxes would be construed as a violation of his First and Fourteenth Amendment rights." Doc. No. 1, at 28.

         On March 4, 2016, the NHDOC emailed Maxey to let him know that Fernandez was appealing the NDOC s denial of postage and storage. On March 5, 2016, Fernandez sent an IRS to Zenk seeking authorization to store his legal materials at the prison while he exhausts his remedies. On March 15, 2016, the NHDOC advised Maxey that if the NDOC does not make a decision concerning Fernandez's legal materials, that the NHDOC may request that Fernandez be returned to the NDOC. On that date, Maxey wrote to the NHDOC requesting an address other than an NDOC facility to which the boxes could be mailed.

         On April 1, 2016, Fernandez wrote to Fouts and asked for permission to retrieve some documents from his legal materials that he needed for legal cases. On April 11, 2016, Fernandez again requested access to his legal materials when Fouts failed to respond to his first request. See Apr. 11, 2016 IRS (Doc. No. 3-1, at 10). On April 12, 2016, Lacasse and Fouts ordered that Fernandez be returned to Nevada and contacted Maxey to ask him to make those arrangements.

         On April 14, 2016, Fouts responded to Fernandez, stating:

We (N.H.) do not store legal work and do not have procedures for inmates to access such files. We are currently pushing Nevada very hard to agree to a disposition on these boxes. If they fail to figure this out, they will likely be looking for another state for you and your files. The only agreement that I would consider making directly with you would be for you to have a one time access to this material in which you would pull what you need (to keep within reasonable space in your cell) and then to have the balance sent out or destroyed. Let me know if you want to do this. Until this time, we will keep pushing Nevada.

Apr. 14, 2016 IRS Resp. (Doc. No. 3-1, at 10) (emphasis in original).

         On April 19, 2016, Fernandez wrote to Maxey and provided an address to which the boxes could be mailed at NDOC expense. On that date, Fernandez also wrote to Fouts and told him that he had written to Maxey to state that, in exchange for maintaining the two legal boxes of materials Fernandez had in his possession, and the ability to go through his other materials to retrieve documents to fill the yellow tote he had been provided at the NHDOC, that he would shred some materials and mail out the remaining boxes at his own expense, if the NHDOC would promise not to transfer him back to Nevada. On May 6, 2016, Fouts advised Fernandez that the NDOC had declined to prepay for postage to mail out Fernandez's legal materials, and that the NHDOC was close to returning Fernandez, and his legal materials, to Nevada. See May 6, 2016 IRS Resp. (Doc. No. 3-1, at 20).

         On May 7, 2016, Fernandez again wrote to Fouts and reiterated his offer to shred some documents and keep other documents in his yellow tote in order to reduce the cost of postage. See May 7, 2016 IRS (Doc. No. 3-1, at 25). On May 12, 2016, Fouts wrote to Fernandez and stated:

Your unit will be working with you to do the following: sort through your legal property; shred the documents of your choosing; keep (in an (1) approved container) the documents of your choosing; and pack the documents of your choosing into boxes that will be mailed out. You will be responsible for the cost of this mailing and you will need to seek reimbursement from NV yourself.

         May 12, 2016 IRS Resp. (Doc. No. 3-1, at 25). On May 17, 2016, Fernandez wrote to Brown to begin sorting through his legal materials. On May 20, 2016, Fernandez wrote to Fouts to confirm that he would begin the process of sorting through his legal materials. On June 23, 2016, Fernandez updated Fouts on his progress, and his difficulties in completing the process to which they had agreed. On July 24, 2016, Fouts advised Fernandez that he was working with staff so that the process would be finished.

         On July 27, 2016, Fouts ordered an email sent to Maxey and Flores to rescind the request that Nevada pick up Fernandez. On July 28, 2016, Fernandez advised Fouts that he had shredded 11 bankers' boxes worth of documents, and was ready to mail the two remaining boxes, along with another box of property, to his family, for a total cost of $261.33. That amount was deducted from Fernandez's inmate account on September 27, 2016. Fernandez was allowed, pursuant to his agreement with Fouts, to keep four cubic feet of legal material in his cell in a yellow tote provided to him by the prison.

         Just over two weeks later, on October 13, 2016, however, McGrath ordered Fernandez to further reduce his legal files to a total of two cubic feet. Fernandez attempted to persuade NHDOC officials to honor the agreement he had entered with Fouts, and with which Fernandez had entirely complied, without success.

         On October 14, 2016, Fernandez sent an IRS to Fouts, arguing that their agreement should be kept, characterizing the agreement as a contract. On October 20, 2016, NHDOC Lt. Liette responded to Fernandez "stating that the agreement was now null and void because a policy change on January 26, 2016 changed and thus the agreement was changed." Doc. No. 1, at 26. Fernandez again wrote to Fouts, who responded, in part:

This agreement (not contract) was made in good faith prior to the specific directive was issued by the Commissioner that clarified the standard. I do not have the authority to offer exceptions to a policy. You must comply with the Commissioners January 2016 directive as detailed in his addition to [NHDOC Policy and Procedure Directive] 9.02.

         Oct. 24, 2016 IRS Resp. (Doc. No. 3-1, at 35). On October 26, 2016, Fernandez agreed to reduce his legal material to two cubic feet. Fernandez asserts that he was forced to destroy approximately half of the legal materials he had previously been allowed to retain. On December 14, 2016, Zenk testified under oath in another case before this court, that after August 1, 2016, he had advised NHSP staff that inmates may request exceptions to the limit on the volume of legal materials that had been added to NHDOC Policy and Procedure Directive ("PPD") 9.02(N) by the Commissioner in January 2016. See Jan. 30, 2017 R&R, Towle v. Warden, No. 15-cv-117-SM (D.N.H.) (ECF No. 56, at 7-8) .

         On April 20, 2017, Fernandez had a parole hearing. Fernandez claims that, because he had been forced to reduce his legal materials, he did not have documents he needed as evidence, and was thus prevented from presenting relevant evidence to the Nevada Parole Board that would have supported a non-frivolous argument for granting him parole. Fernandez was denied parole. Fernandez further asserts that he was impeded from properly preparing his appeal from the denial of parole due to the lack of access to critical and relevant legal documents.

         Additionally, Fernandez claims that he is currently litigating multiple § 1983 cases and a case in the Nevada state courts, but is unable to keep new legal documents pertaining to these matters without discarding other necessary documents, as he has already amassed the full volume of legal material allowed to him by NHDOC policy. Fernandez states that, as a result, his ability to litigate his pending lawsuits has been impaired, and his opportunity to obtain parole in the future has been reduced.

         C. Toxico ...


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