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Rand v. Hanks

United States District Court, D. New Hampshire

May 15, 2019

James E. Rand
v.
Helen Hanks, Commissioner, New Hampshire Department of Corrections; Michelle Edmark, Warden, New Hampshire State Prison for Men; Major Jon Fouts; and Christopher Kench

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Through the vehicle of 42 U.S.C. § 1983, pro se plaintiff James Rand, an inmate at the New Hampshire State Prison for Men (“NHSP”), has sued four NHSP officials for violating his constitutional right to access the courts. Before this magistrate judge for a report and recommendation are: (1) plaintiff's motion for a preliminary injunction; and (2) defendants' motion to dismiss for failure to state a claim upon which relief can be granted. Each motion has been duly opposed. For the reasons that follow, defendants' motion to dismiss should be granted and, as a consequence, plaintiff's motion for a preliminary injunction should be denied.

         I. Motion to Dismiss

         A. The Legal Standard

         When ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, see Fed.R.Civ.P. 12(b)(6), 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) (quoting Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 52-53 (1st Cir. 2013)). Then, when focusing “on the non-speculative, non-conclusory facts and reasonable inferences implied by those facts, [the court must] ask whether it is plausible, as opposed to merely possible, that [the] plaintiff's complaint narrates a claim for relief.” Lemelson, 903 F.3d at 23 (citation omitted).

         B. Background

         The facts recited in this section are drawn from plaintiff's complaint, see id., come from documents that are “fairly incorporated into [his] complaint, ” Barchock v. CVS Health Corp., 886 F.3d 43, 48 (1st Cir. 2018) (citations omitted), or are “matters of public record, and facts susceptible to judicial notice, ” Starr Surplus Lines Ins. Co. v. Mountaire Farms Inc., 920 F.3d 111, 114 (1st Cir. 2019) (quoting Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011)).

         On April 5, 2012, Rand was arraigned in the Concord District Court (“CDC”) on four misdemeanor charges: two counts of false swearing and one count each of making a false report and resisting arrest. Each of those crimes is an unclassified misdemeanor. See N.H. Rev. Stat. Ann. (“RSA”) §§ 641:2, 641:4, and 642:2.[1] Three days before Rand was arraigned, the Concord City Prosecutor executed a Notice of Intent to Seek Class A Misdemeanor Penalties for the unclassified misdemeanors with which Rand was being charged.[2] That form bears the stamp of the CDC clerk of court. The day after Rand was arraigned, he was bound over to the Merrimack County Superior Court (“MCSC”).

         In June of 2012, the Assistant County Attorney filed informations in the MCSC charging Rand with one count each of false swearing, making a false report, and resisting arrest. After a jury trial, Rand was found guilty of his three misdemeanor charges as well as one felony count of robbery. In April of 2013, Rand was sentenced to one year of confinement for each misdemeanor, [3] and the sentencing judge specified that Rand's misdemeanor sentences were to be served concurrently with each other and with at least one other sentence he had received. Rand appealed his convictions to the New Hampshire Supreme Court (“NHSC”), which affirmed. See State v. Rand, Nos. 2013-0273 & 2013-0274, 2014 WL 11485797, at *1 (N.H. Dec. 4, 2014).

         In March of 2017, Rand filed, in the MCSC, a motion to strike the imposition of class A misdemeanor sentences. In October of 2017, the Assistant County Attorney filed an objection, to which he attached a copy of the notice of intent that had been filed in the CDC. Judge Kissinger denied Rand's motion in an order that stated: “Denied. See attachment to state's objection.” Pl.'s Surreply, Attach. 2 (doc. no. 16-2) 3 of 60. The MCSC clerk's notice of decision is dated October 16, 2017. See id. On October 30, Rand filed a motion for reconsideration that Judge Kissinger denied in a one-word order on November 20, 2017.[4]

         In his complaint, Rand alleges that on December 11, 2017, he filed a Rule 7 Notice of Discretionary Appeal with the NHSC by depositing it in the prison's mail system. However, he begins the argument section of his objection to defendants' motion to dismiss in the following way:

The plaintiff HAD within his physical possession a copy of the rough draft of his “Discretionary Appeal” which was drafted for December 11, 2017, however WAS NOT filed upon this date due to the factor that the plaintiff sought relief from the Merrimack County Superior Court, when he filed a “Pro Se Motion for Reconsideration” which address[ed] the issue of “prosecutorial misconduct” that WAS NOT covered within his original “Motion To Strike”.[5]

Pl.'s Obj. (doc. no. 13) ¶ 28 (emphasis in the original). So, the date on which Rand claims to have deposited his notice of appeal in the prison mail system is not clear, but he does not claim to have done so any earlier than December 11. Be that as it may, his notice of appeal is dated January 4, 2018.

         In his notice of appeal, Rand claimed that Judge Kissinger erred by: (1) ruling that he had been served with notification of the prosecution's intent to seek class A misdemeanor penalties for the unclassified misdemeanors with which he had been charged; (2) neglecting to rule that the State's objection to his motion to strike was untimely; (3) failing to give him a hearing on his motion to strike; (4) failing to rule that the Assistant County Attorney had violated his constitutional rights; and (5) denying his motion for reconsideration in a one-word order.

         In an order dated January 30, 2018, the NHSC dismissed Rand's appeal as untimely, explaining that: (1) his notice of appeal was due on November 15, 2017, i.e., 30 days after Judge Kissinger denied his motion to strike; (2) his motion to reconsider Judge Kissinger's order was untimely, under the New Hampshire Rules of Criminal Procedure and, as a consequence, did not stay the running of the appeal period; and (3) his notice of appeal was filed on January 8, more than a month after the deadline for filing it had passed.

         On January 25, 2018, Rand was moved to a new housing unit in the NHSP. In the process, his “criminal discovery for eight (8) felonies and three (3) misdemeanors was confiscated, ” Compl. (doc. no. 1) ¶ 14 (emphasis omitted), pursuant to NHSP policy, due to its volume.[6] That was problematic, in plaintiff's view, because defendants had “a strong lack of understanding that [he] was challenging his convictions and that his ‘criminal discovery' was an important key to these challenges, ” id. ¶ 15 (emphasis omitted).

         In April of 2018, Rand filed a petition for a writ of certiorari in the United States Supreme Court (“SCOTUS”) and also filed a motion for an extension of the deadline for filing such a petition. On May 17, he received notice from the Court that his petition did not comply with SCOTUS rules, ...


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