United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
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).
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)) .
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. 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"),  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.
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.
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.
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
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.
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. 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.
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.
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.
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.
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
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) .
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
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.
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
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
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).
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.
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.
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.
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,
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.
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
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
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.