Gray v. Perkins et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey M. Gray
v. Civil No. 14-cv-386-PB
John Perkins et al.1
REPORT AND RECOMMENDATION
Jeffrey Gray, an inmate at the New Hampshire State Prison
(“NHSP”), has filed a Verified Complaint (doc. no. 1), a First
Amended Verified Complaint (doc. no. 6), a Second Amended
Verified Complaint (doc. no. 23), and an addendum to the Second
1Plaintiff names the following defendants in this action:
New Hampshire Department of Corrections (“DOC”) Commissioner
William Wrenn; DOC employee Tammy J. McLeod; New Hampshire State
Prison (“NHSP”) Warden Richard Gerry; Northern New Hampshire
Correctional Facility (“NCF”) Warden Edward Reilly; DOC
Education Director/NHSP Library Supervisor Daniel Tanguay; NHSP
Librarian John Perkins; NCF Librarian Angela L. Poulin; NHSP
Maj. Jon H. Fouts; NHSP Capt. Charles Boyjiani; NHSP Lt. James
Brown; NHSP Sgt. Sheryl St. Peter; NHSP Sgt. Shawn S. McLeod;
NHSP Cpl. Bryan D. Raposa; NHSP Corrections Officer (“C.O.”) Roy
Tripp; NHSP C.O. Frank H. Logan, III; NHSP C.O. Francis J. Reed;
NHSP C.O. Bradford E. Nudd; NHSP C.O. Clark Goodrich, NHSP C.O.
Barbra Ault; NHSP C.O. Stephen P. Sullivan; and DOC Director of
Medical and Forensic Services Helen Hanks. The court further
construes Gray’s pleadings to name the following individuals as
defendants to this action: DOC physician Dr. Celia Englander;
NHSP Nurse Practitioners Lisa Savage and Corina Neculai; and
NHSP Physical Therapist Bernadette Campbell. Gray sues each
defendant in his or her individual and official capacities.
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Amended Verified Complaint (doc. no. 27).2 The complaint
documents are before the court for preliminary review, pursuant
to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1). Gray has also filed
motions seeking a temporary restraining order (“TRO”) and a
preliminary injunction (doc. nos. 3, 12-14, 16, 19, and 28-31),
which have been referred to this magistrate judge for a report
and recommendation as to disposition.
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 facially plausible 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)).
2The factual assertions contained in the complaint documents
listed in this Report and Recommendation are considered as part
of the complaint for all purposes.
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II. Claims to be Served
The court finds that the following claims are sufficiently
stated in the complaint to allow them to proceed, without
prejudice to the defendants’ ability to file any appropriate
motion to dismiss:
1. NHSP Librarian John Perkins and NHSP Corrections
Officer (“C.O.”) Roy Tripp retaliated against Gray for
exercising his First Amendment right to petition the
government for a redress of grievances by filing
administrative grievances and this civil action, by barring
Gray from the law library on and after August 29, 2014, and
by causing Gray to lose his prison job, in violation of
Gray’s First Amendment rights.
2. NHSP C.O. Stephen P. Sullivan created a
substantial risk of serious harm to Gray when Sullivan, on
April 28, 2014, showed the other inmates in Gray’s cell a
newspaper article describing Gray’s charges and conviction
for sexual offenses, placing him in danger of being harmed
by the other inmates, in violation of Gray’s Eighth
Amendment right not to be subject to cruel and unusual
punishment.
3. NHSP Lt. James Brown created a substantial risk
of serious harm to Gray when Brown, on November 19, 2014,
told several inmates, including Gray’s cellmate, that Gray
had filed grievances accusing his cellmate of engaging in
in appropriate sexual actions involving Gray, placing Gray
in danger of being harmed by the other inmates, in
violation of Gray’s Eighth Amendment right not to be
subject to cruel and unusual punishment.
4. New Hampshire Department of Corrections (“DOC”)
physician Dr. Celia Englander, NHSP Nurse Practitioners
Lisa Savage and Corina Neculai, NHSP Physical Therapist
Bernadette Campbell, Northern New Hampshire Correctional
Facility Warden Edward Reilly, and NHSP Warden Richard
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Gerry, acting with deliberate indifference to Gray’s
serious medical needs (sleep apnea, ulcers, Helicobacter
Pylori stomach disease, chronic lower back pain, and
tinnitus), denied Gray constitutionally adequate medical
care for those conditions, or denied Gray’s grievances
concerning his medical care, in violation of Gray’s Eighth
Amendment rights.
5. NHSP C.O. Frank H. Logan, III, violated Gray’s
Eighth Amendment rights to adequate medical treatment and
safe conditions of confinement when he placed Gray in a top
bunk, resulting in injury to Gray, despite knowing that
Gray had been issued a “bottom bunk pass” by the prison
medical department.
6. NHSP Sgt. Sheryl St. Peter and NHSP Lt. James
Brown violated Gray’s First Amendment right to freely
exercise his religion by seizing and failing to return
Gray’s bibles, religious books, and religious pamphlets,
without a compelling and legitimate reason for the seizure.
7. Unspecified defendants violated Gray’s right to
receive adequate dental care in prison by failing to treat
his decayed and abscessed tooth, which they were aware of
in September 2012, causing Gray to lose most of the tooth,
and for failing to extract the remainder of the tooth.
Accordingly, in an Order issued simultaneously with this Report
and Recommendation (“Simultaneous Order”) the court directs
service of Claims 1 - 6, as numbered above, on the defendants
named in those claims. In the Simultaneous Order, the court
also grants Gray leave to amend Claim 7 to identify defendants
to that claim.
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II. Claims Recommended for Dismissal
A. Access to the Courts
Gray claims that defendants have violated his First
Amendment right to meaningful access to the courts by banning
him from the NHSP law library and all legal resources since
August 29, 2014, despite knowing that Gray is litigating this
action, and state court post-conviction proceedings. Gray also
alleges that the library is not up to date.
To state a claim for a denial of access to the courts, an
inmate must show, among other things, that defendants have
hindered his ability to pursue a nonfrivolous claim that he has
a right to litigate. See Lewis v. Casey, 518 U.S. 343, 349-52
(1996); Guglielmo v. N.H. State Prison, 111 F.3d 122, 1997 U.S.
App. LEXIS 8616, at *2-*3 (1st Cir. 1997) (unpublished table
decision) (citing Lewis, 518 U.S. at 356) (inmate must show
“that an actionable claim has been lost or rejected or that
presentation of the claim is currently being prevented” due to
defendants’ actions). Gray has asserted that he has risked
missing deadlines, but he has not demonstrated that any of his
pending legal matters have been actually injured by defendants.
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Accordingly, the district judge should dismiss this claim.
B. Retaliation
In addition to the retaliation claims set forth in Claim 1,
above, Gray asserts that other defendants have retaliated
against him for filing administrative grievances and this
lawsuit. Specifically, he claims that certain defendants have
searched Gray’s sleeping areas and property, seized his personal
property, issued embellished and/or false disciplinary reports
against him, and generally harassed him.
To state a claim for retaliation for the exercise of First
Amendment rights, an inmate must allege: (1) that the conduct
which led to the retaliation was protected by the First
Amendment; (2) that he suffered non-de minimis adverse action at
the hands of the prison officials; and (3) that there was a
causal link between the exercise of his First Amendment rights
and the adverse action taken. See Hannon v. Beard, 645 F.3d 45,
48 (1st Cir. 2011); Starr v. Dube, 334 F. App’x 341, 342 (1st
Cir. 2009). An adverse act taken in response to protected
conduct is not de minimis, however, if it would deter an
individual of ordinary firmness from exercising First Amendment
rights. See Starr, 334 F. App’x at 342.
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Gray has failed to allege that the adverse acts at issue,
with the exception of those the court directs served in the
Simultaneous Order, were more than de minimis. Gray’s
allegations of verbal harassment, disciplinary charges, and
searches of his property, are not the sort of acts that would
chill the exercise of First Amendment rights by an inmate of
ordinary firmness. See id. at 342–343 (adverse act is de
minimis if: it causes only “a few days of discomfort; the
imposition of a minor sanction; inmate can defend themselves
from a retaliatory disciplinary report; a disciplinary report is
later dismissed; or where there is no “substantial” impact on
inmate (internal quotation marks and citations omitted)).
Accordingly, Gray has failed to state any actionable retaliation
claim, other than those asserted in Claim 1, and the district
judge should dismiss those retaliation claims.
C. Harassment
Gray describes multiple instances of corrections officials
being rude, threatening, vulgar, or disrespectful to him, or
otherwise verbally harassing or threatening him during his
incarceration. Derogatory comments and threats alone, while
unprofessional, “do[] not constitute cruel and unusual
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punishment, [or] deprive a prisoner of a protected liberty
interest.” DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000)
(footnote and citations omitted). Accordingly, the district
judge should dismiss Gray’s harassment claims.
D. Disciplinary Proceedings
Gray complains that certain deficiencies and irregularities
in disciplinary proceedings against him violated his Fourteenth
Amendment due process rights. Under Sandin v. Conner, 515 U.S.
472 (1995), the court, in deciding whether a due process
challenge to a prison disciplinary proceeding states a claim for
relief, must determine if disciplinary penalties “impose[]
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” Id. at 484.
Nothing in Gray’s allegations suggests that he was
subjected to sanctions which exposed him to any atypical or
substantial hardship in relation to the ordinary incidents of
prison life, or that otherwise exceeded the scope of his
sentence. Gray has thus failed to demonstrate that he suffered
any deprivation of a protected liberty interest as a result of
the challenged disciplinary proceedings. Accordingly, the
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district judge should dismiss Gray’s due process claims related
to disciplinary proceedings against him.
E. Personal Property
Gray alleges that defendants, on more than one occasion,
deprived him of his personal property without due process.
“[A]n unauthorized intentional deprivation of property by a
state employee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss is
available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). The
State of New Hampshire provides an adequate postdeprivation
remedy pursuant to N.H. Rev. Stat. Ann. §§ 541–B:9 and 541–B:14
(1997) (providing a post-deprivation means of recouping property
loss attributable to the State). Because an adequate state
remedy is available to Gray, he has failed to state a Fourteenth
Amendment due process violation arising from the loss of
personal property, and the district judge should dismiss this
claim.
F. Mail
1. Constitutional Claims
Gray alleges various violations of his First and Fourteenth
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Amendment rights concerning the delay, nondelivery, or opening
of some of his mail. Specifically, Gray complains that a letter
from the United States Department of Veterans Affairs (“VA”) was
“withheld” from him for thirty-eight days, that “confidential
and privileged” mail he sent to Warden Gerry through the United
States mail was removed from the mail, opened, and sent to Gerry
via interdepartmental mail, and that certain materials sent to
Gray at the prison by the Rockingham County Attorney’s office,
pursuant to a court order, was never delivered to him. Although
Gray accuses prison officials of deliberately delaying or
denying his mail, and interfering with his confidential
correspondence, nothing in the facts Gray has asserted
demonstrate more than inadvertence or neglect by defendants, to
the extent they are alleged to have mishandled Gray’s mail.
Gray has failed to demonstrate any actionable violation of any
right arising under the constitution, and the district judge
should dismiss any intended constitutional claim concerning the
defendants’ handling of Gray’s mail.
2. Statutory Claims
Gray asserts claims concerning the handling of his mail
under the Privacy Act of 1974, 38 U.S.C. § 5701. That statute
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imposes an obligation on the Secretary of the VA not to release
certain information, see Cornish v. Dudas, 715 F. Supp. 2d 56,
70 (D.D.C. 2010), but does not impose any obligation on state
prison officials. As Gray has not sued the VA or any VA
employee, his claims do not arise under the Privacy Act, and the
district judge should dismiss this claim.
Gray further seeks relief under 38 C.F.R. § 1.576, which is
a VA regulation that does not create a civil right of action.
See Williams v. U.S. Gov’t, No. 12-00375-HG-KSC, 2013 U.S. Dist.
LEXIS 91165, *16 (D. Haw. June 28, 2013). Accordingly, Gray has
not asserted an actionable claim under 38 C.F.R. § 1.576, and
the district judge should dismiss the claim.
3. Failure to Follow Prison Policy
Gray alleges that the alleged mishandling of his mail
violated his due process rights, because prison officials failed
to follow internal prison procedures governing the handling of
prisoner mail. An inmate has no freestanding constitutional
right to have prison officials follow prison policies if the
officials' actions are otherwise constitutional. See Querido v.
Wall, C.A. No. 10–098 ML, 2010 U.S. Dist. LEXIS 139201, at *14,
2010 WL 5558915, at *3 (D.R.I. Dec. 8, 2010), report and
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recommendation adopted, 2011 U.S. Dist. LEXIS 1882, 2011 WL
63503 (D.R.I. Jan. 7, 2011). As stated above, Gray has not
asserted sufficient facts to demonstrate that his constitutional
rights were violated by the alleged mishandling of his mail.
Accordingly, Gray cannot assert a claim based on the failure of
prison officials to properly follow prison policies.
G. Supervisory Liability
Gray names a number of prison officials as defendants to
this action, in their capacity as supervisors. Supervisors may
be held liable under 42 U.S.C. § 1983 only for their own actions
or inactions, amounting to deliberate indifference. See
Grajales v. P.R. Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012).
Nothing alleged in the complaint establishes any basis for
holding any official liable in his or her supervisory capacity
for any of the harms Gray has alleged. Accordingly, the
district judge should dismiss Gray’s supervisory liability
claims.
Request for Preliminary Injunctive Relief
Gray’s requests for a TRO and preliminary injunction (doc.
nos. 3, 12-14, 16, 19, and 28-31) have been referred to this
magistrate judge for a report and recommendation as to
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disposition. Gray has not, in his pleadings, demonstrated
specific facts that “clearly show that immediate and irreparable
injury, loss, or damage will result to [Gray] before the adverse
party can be heard in opposition,” Fed. R. Civ. P. 65(b)(1)(A),
such that a TRO would be appropriate in this case. Accordingly,
the request for a TRO should be denied, and the motions be
construed as seeking only a preliminary injunction. In the
Simultaneous Order, the court directs defendants to respond to
those requests.
Conclusion
In the Simultaneous Order, this court directs service of
Claims 1 – 6, as identified herein, upon defendants Perkins,
Tripp, Sullivan, Brown, Englander, Savage, Neculai, Campbell,
Reilly, Gerry, Logan, and St. Peter, and grants Gray leave to
amend Claim 7, as identified herein, to identify defendants to
that claim. For the reasons set forth in this Report and
Recommendation, the court recommends that the district judge:
(1) dismiss the remaining the claims Gray asserts, and drop the
remaining defendants, from this action; and (2) deny Gray’s
request for a TRO.
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Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
May 7, 2015
cc: Jeffrey M. Gray, pro se
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