Cullen v. NH Department of Corrections, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Allan Cullen, Ronald Bourdon,
and Scott Rogers
v. Civil No. 16-cv-537-SM
New Hampshire Department of Corrections
Commissioner William Wrenn
REPORT AND RECOMMENDATION
Allan Cullen, Ronald Bourdon, and Scott N. Rogers,
prisoners at the Northern New Hampshire Correctional Facility
(“NCF”), have filed this lawsuit pursuant to 42 U.S.C. § 1983,
to challenge a prison directive that Cullen combine all of his
legal materials in his cell into one “legal tote.” The
complaint (Doc. No. 1), entitled “Petition for Injunction,”
seeks a preliminary injunction asking that the court: (1) stop
prison officials from taking away Cullen’s legal materials, (2)
direct prison officials to issue Cullen a second legal tote, for
which he has already paid, and (3) prohibit prison officials
from retaliating against Cullen. Plaintiffs assert a desire to
proceed with a class action in this matter.
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Background
Cullen is an NCF inmate. He has legal materials in his
cell that exceed the capacity of a single “legal tote.” He
purchased a second tote for storing his legal materials in
October 2016, which was never delivered to him. Plaintiffs
assert that the two totes stacked one on top of the other will
fit under the desk in Cullen’s cell. Plaintiffs further assert
that Cullen has litigated claims challenging his conviction pro
se.
Plaintiffs assert that Corrections Officer Burdick on
December 5, 2016, told Cullen that per order of the Department
of Corrections (“DOC”) Commissioner, all legal work in Cullen’s
cell needed to be put into one legal tote, and that Cullen would
have one week to do that. Plaintiffs claim that Cullen will not
be able to pursue “constitutional access to courts” because he
has been ordered to get rid of legal materials exceeding one
legal tote in volume. Plaintiffs further assert that the one
legal tote rule applies at NCF but does not apply at the New
Hampshire State Prison, which they claim violates the Fourteenth
Amendment right to equal protection.
Discussion
I. Standard
To obtain a preliminary injunction, a plaintiff must
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establish “that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
The burden of proof on a motion for preliminary injunction is on
the movant. See Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d
13, 18 (1st Cir. 2006).
II. Ronald Bourdon and Scott Rogers
Inmates Ronald Bourdon and Scott Rogers have signed the
complaint. No facts are alleged in the complaint, however, as
to either of them. There are no allegations regarding whether
the one tote policy has affected Rogers or Bourdon. The
complaint alleges facts relating only to Cullen’s legal
materials, and to the policy’s potential impact on Cullen. In
the absence of any facts showing both that Bourdon and Rogers
are likely to succeed on the merits of any claim, and that they
are likely to suffer irreparable harm, the district judge should
deny their request for a preliminary injunction.
III. Equal Protection
Plaintiffs claim that the one tote policy has been applied
at NCF but not at the New Hampshire State Prison, in violation
of the right to equal protection. This court’s records in other
cases indicate, however, that the one tote policy has been
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applied at the New Hampshire State Prison. See, e.g., Towle v.
New Hampshire State Prison Warden, No. 15-cv-117-SM (D.N.H. Aug.
10, 2016) (order granting temporary restraining order relating
to one tote policy). Taking into account matters that this
court may discern from its own records, this court cannot find
that plaintiff could establish a likelihood of success on the
merits of the equal protection claim, as presently alleged.
Accordingly, the request for a preliminary injunction to redress
an equal protection violation should be denied.
IV. Access to the Courts
To prove that an inmate’s right of access to the courts has
been violated, the inmate must show he was actually injured in
his ability to pursue a nonfrivolous claim, in a post-conviction
proceeding or other civil rights matter that Cullen had a right
to litigate. See Lewis v. Casey, 518 U.S. 343, 352, 354-55
(1996). Stripped of legal conclusions, the complaint fails to
state facts alleging how taking away more than one tote of legal
materials from Cullen’s cell has violated Cullen’s right to
access the courts. Plaintiffs have not demonstrated a
likelihood of success on the merits, or a likelihood of
irreparable harm, warranting a preliminary injunction, with
respect to the access to the courts claim. Accordingly, at this
stage of the case, the district judge should deny the request
for a preliminary injunction set forth in Document No. 1
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relating to the access to the courts claim. Plaintiffs may file
a new motion for a preliminary injunction, separate from the
amended complaint, after an amended complaint stating a claim
for relief is filed in this action.
V. Retaliation
Plaintiffs ask for an injunction to prevent prison
officials from retaliating against them for litigating this
case. Plaintiffs have not alleged any facts suggesting that
retaliation has occurred, or is likely to occur, as to any of
them. Therefore, they have failed to state any facts suggesting
that the relief requested is necessary to prevent irreparable
harm. Accordingly, their request for an injunction to prevent
retaliation should be denied.
Conclusion
For the foregoing reasons, the request for a preliminary
injunction set forth in Document No. 1 should be denied, without
prejudice to plaintiff’s ability to file a motion seeking
preliminary injunctive relief after an amended complaint is
filed in this action. 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). The fourteen day
period may be extended upon motion. Failure to file objections
within the specified time waives the right to appeal the
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district court’s order. See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 3, 2017
cc: Allan Cullen, pro se
Scott Rogers, pro se
Ronald Bourdon, pro se
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