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Frene v. State

United States District Court, D. New Hampshire

May 7, 2018

Robert Frene
v.
State of New Hampshire

          Robert Frene, pro se

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Before the court is Robert Frene's petition for a writ of habeas corpus (Doc. No. 1), filed pursuant to 28 U.S.C. §§ 2241 & 2254, and addenda (Doc. Nos. 4, 7, 10, 11, 17, 19-22) to that petition. The petition and addenda are before the court for preliminary review to determine whether the petition is facially valid and may proceed. See Rule 4 of the Rules Governing Section 2254 Cases ("§ 2254 Rules"); § 2254 Rule 1(b) (authorizing court to apply § 2254 Rules to § 2241 petitions); LR 4.3(d)(4)(A); see also McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face."). Also before the court are Frene's seven motions for preliminary injunctive relief (Doc. Nos. 5, 12-16, 18), which have been referred to this magistrate judge for a report and recommendation as to disposition. See Jan. 11, 2017 Order; Feb. 3, 2017 Order; May 9, 2017 Order; May 31, 2017 Order; June 9, 2017 Order; June 15, 2017 Order.[1]

         Background

         When Frene filed his initial pleading (Doc. No. 1) in this matter, the court identified the filing as a petition for a writ of habeas corpus under 28 U.S.C. § 2241, as it appeared that Frene was primarily challenging the constitutionality of his pretrial detention at the Belknap County House of Corrections. Frene then filed two documents (Doc. Nos. 4, 7), which the court treated as addenda to Frene's § 2241 petition, and a motion for preliminary injunctive relief (Doc. No. 5), which also contained allegations and claims not asserted in the original petition.

         Frene's filings assert claims alleging violations of his federal rights by named and unnamed defendants. Frene has challenged, among other things: the validity of a number of arrests, prosecutions, and convictions, to which he has been subjected since 1997; the constitutionality of unspecified state motor vehicle laws and state court actions restricting and/or regulating his right to travel; the fact of his detention at various jails or other facilities; the conditions of his confinement at those facilities; and other conduct of named and unnamed police officers, judges, and state officials that he alleges has violated his rights.

         On February 3, 2017, the undersigned Magistrate Judge issued an Order (Doc. No. 9) ("February 3 Order") directing Frene to clarify: whether he is seeking release from current custody, by way of a habeas action; or whether he seeks damages and/or injunctive relief in a civil rights action under 42 U.S.C. § 1983. In the February 3 Order, the court specifically directed Frene to provide this court with a narrative statement of the facts underlying his claims; the identity of the defendants as to each of the claims he has asserted; the status of his state criminal or administrative proceedings; and clarification regarding his custody status. Frene has not responded to the February 3 Order in a manner that sheds light on any of those issues.

         Discussion

          I. Nature of Case

          The court directed Frene to advise the court whether he intended to pursue this matter as a habeas action or as a civil rights action. Frene has failed to comply with the court's directive to identify his action as either a habeas petition or a civil rights action and continues to assert his claims in habeas and under § 1983. The court, based on Frene's initial filing in this matter, identified this case as a habeas action. Frene has neither objected to that designation nor asked that it be changed. The court will therefore continue to construe this matter as a habeas corpus petition and subjects it to review pursuant to § 2254 Rule 4.

         II. Non-Habeas Claims

          A. Damages

          In his filings, Frene seeks monetary damages for numerous alleged violations of his rights under state and federal law. "[H]abeas corpus is not an appropriate or available remedy" for a damages cla im. Preiser v. Rodriguez, 411 U.S. 475, 494 (1973). Accordingly, Frene's claims for money damages should be dismissed from this case without prejudice to Frene's ability to assert such claims in a civil rights action seeking such relief.

         B. Inju ...


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