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Cremeans v. Wrenn

United States District Court, D. New Hampshire

March 28, 2019

Christopher Cremeans
William Wrenn, Christopher Kench, Michael Zenk, Jon Fouts, and Nichole Kipphut

          Christopher Cremeans, pro se

          Scott Edward Sakowski, Esq.


          Steven J. McAuliffe United States District Judge

         Plaintiff, Christopher Cremeans, an inmate at the New Hampshire State Prison (“NHSP”), has brought this action under 42 U.S.C. § 1983, asserting that five prison officials, acting in both their individual and official capacities, have violated his rights under the First and Fourteenth Amendments. Before the court are: (1) plaintiff's “Motion to Bar and Preclude Defendant's Motion to Dismiss” (Doc. No. 18); (2) defendants' motion to dismiss (Doc. No. 12); and (3) plaintiff's request for injunctive relief contained in the complaint (Doc. No. 1).

         Motion to Bar and Preclude (Doc. No. 18)

         Liberally construed, the motion to bar and preclude asserts supplemental objections to defendants' motion to dismiss along with a request that the court sanction defendants by denying their motion to dismiss, for what plaintiff argues are insufficiently supported defenses and gross mischaracterizations of plaintiff's claims. Taking plaintiff's pro se status into account, the court concludes that the motion to bar and preclude is a permissible supplement to Cremeans' objection to the defendants' motion to dismiss, and to that extent, the court has duly considered the arguments therein in ruling on the motion to dismiss. Finding, however, that defendants have neither misrepresented Cremeans's claims in a misleading manner, nor engaged in any other sanctionable misconduct, the court declines the request to bar or preclude the motion to dismiss and thus denies plaintiff's motion (Doc. No. 18).

         Motion to Dismiss (Doc. No. 12)

         The defendants move to dismiss the complaint, based on sovereign immunity and qualified immunity, and for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).

         I. Standard

         When ruling on a Rule 12(b)(6) motion based on the failure to state a claim or the defense of qualified immunity, the court must “‘accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences therefrom in the [plaintiff's] favor.'” Lemelson v. Bloomberg L.P., 903 F.3d 19, 23 (1st Cir. 2018) (citation omitted). Courts may augment those pleaded facts and inferences with information from “documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011). Focusing on the non-speculative, non-conclusory facts and reasonable inferences, the court must ask “whether it is plausible, as opposed to merely possible, that plaintiff's complaint narrates a claim for relief.” Lemelson, 903 F.3d at 23 (citation omitted).

         II. Background[1]

         In 2005, Cremeans was convicted of two counts of aggravated felonious sexual assault and two counts of endangering the welfare of a child. The charges against Cremeans “stemmed from sexual assaults [he] perpetrated against his stepchildren . . . who were as young as four and five years old . . . when the assaults first began.” State v. Cremeans, Nos. 216-2004-CR-01243 et al. (N.H. Super Ct., Hillsborough Cty. June 6, 2017) (Doc. No. 1, at 41). Cremeans was sentenced to a term of incarceration, and his sentencing order provided that he was to have no unsupervised contact with minors under the age of seventeen. See id.

         When Cremeans first arrived at the NHSP, prison officials approved a visitor list for Cremeans that included his two minor daughters. In 2008, his two-year-old grandson, born after Cremeans was incarcerated, was added to his visitor list. Cremeans received visits from his grandson accompanied by the boy's mother several times before February 2017, when Cremeans was informed that NHSP Warden Michael Zenk had removed the grandson from his visitor list. An NHSP Unit Manager advised Cremeans that his grandson had been removed to enforce the provision in his sentencing order that he have no unsupervised contact with minors.

         Cremeans moved in the sentencing court to vacate the no-contact provision in his sentence. While the Superior Court granted that motion and struck the provision in June 2017, that court also expressly noted that it did not “make any finding with respect to the New Hampshire Department of Corrections' authority to place limitations on [Cremeans's] contact with third persons, including those covered by the no-contact provisions at issue, while he serves his sentence.” Cremeans, slip op. at 3 (Doc. No. 1, at 43).

         Following the issuance of that Superior Court order, Cremeans renewed his efforts to have his grandson restored to his visitor list. On July 28, 2017, New Hampshire Department of Corrections (“DOC”) Victim Services Coordinator Nichole Kipphut responded to two Inmate Request Slips (“IRSs”) Cremeans had submitted, as follows:

After review of all information available [and] in light of the visiting room policy [and] the DOC's authority to restrict visitor access to offenders, including minor children, even if the Sentencing Order does not explicitly prohibit contact, it has been decided to prohibit your contact [with] minor children until you have made arrangements for a trained chaperone to be present during visits [with] minors. Please review the “Re-Entry Guide” or talk [with the Intensive Sexual Offender Treatment program] regarding community treatment providers, such as RTT Associates, who offer a chaperone program.

July 28, 2017 IRS Resp. (Doc. No. 1, at 47).

         Cremeans filed what he characterized as a first-level grievance with NHSP Major Jon Fouts to complain about Kipphut's response to his IRSs. In his response, Fouts told Cremeans that he did “not have supervisory control over Ms. Kipphut and [could not] redirect her actions.” Aug. 1, 2017 IRS Resp. (Doc. No. 1, at 48). Fouts further informed Cremeans that the proper way to appeal Kipphut's decision was to file a grievance with the Warden. See id.

         Cremeans then filed a grievance with Warden Zenk. The Warden denied that grievance, stating:

Ms. Kipphut . . . has acted within the scope of her authority in determining that a properly trained chaperone must be present in order for your grandson to visit you at this facility. Her decision takes into account that your offense behavior involved the sexual abuse of minors and the fact that you have not completed the Sex Offender Treatment Program at this facility. Your objection to this increased restriction is without merit. While a resident is incarcerated, the DOC has full control over all visitors to the prison property. This control extends to restricting any visitors that might jeopardize security or safety. . . . [B]ecause the DOC has the ability to restrict visitor access, it is within its authority to prohibit a resident from seeing a minor if the security or safety of the institution or an individual would be placed at risk. As set forth above, the DOC has the authority to restrict visitor access to its residents. That restriction may extend to any person, including minor children, even if a resident's mittimus does not explicitly prohibit contact between the parties.

Aug. 6, 2017 Resp. to Grievance (Doc. No. 1, at 50) (citing N.H. Rev. Stat. Ann. § 21-H:13, VI; N.H. Code Admin. R. COR 305.02(d); DOC Policy and Procedure Directive (“PPD”) 7.09, III).

         Cremeans appealed Warden Zenk's decision to DOC Commissioner William Wrenn. Defendant Christopher Kench denied that appeal on the Commissioner's behalf.

         Cremeans has not alleged whether he has taken any steps to find a trained chaperone to satisfy the prison's condition for allowing Cremeans to resume contact visits with his grandson, and Cremeans has not otherwise stated that he is unable to secure the services of a trained chaperone. Since March 2018, DOC rules have provided: “Persons under departmental control who are incarcerated for crimes committed against children or have a history of crimes against children, may have visiting privileges with children denied or further restricted.” N.H. Code Admin. R. COR 305.02(m) (eff. Mar. 23, 2018).

         III. Discussion

         Cremeans asserts that defendants violated: (1) his First Amendment right to familial association (Count I); (2) his Fourteenth Amendment right to procedural due process (Count II); and (3) his Fourteenth Amendment right to equal protection (Count III). ...

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