Towle v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert V. Towle
v. 	Civil No. 15-cv-117-SM
Warden, New Hampshire State Prison
REPORT AND RECOMMENDATION
Petitioner Robert V. Towle challenges the validity of his
detention in this habeas corpus action, filed under 28 U.S.C. §
2254. 	Before the court at this time is Towle’s motion (Doc. No.
122) seeking injunctive relief relating to his access to his
legal materials which relate to this case.1 	Towle seeks an order
directing the respondent to grant him a written exception to the
New Hampshire Department of Corrections (“DOC”) Policy and
Procedure Directive (“PPD”) 9.02(N) to prevent the destruction
or denial of his access to his legal materials. 	Respondent
objects. 	See Doc. No. 124.
Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
1Towle’s motion seeks a “restraining order.” 	Because the
respondent has received notice and the opportunity to be heard
in opposition to Towle’s motion, it is construed as a motion for
a preliminary injunction under Fed. R. Civ. P. 65(a)(1).
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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.’” 	Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (citation omitted); see also March
v. Mills, 867 F.3d 46, 52-53 (1st Cir. 2017), cert. denied, 138
S. Ct. 1545 (2018). 	The burden of proof is on the movant. 	See
Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.
2006).
Background
In 2016, Towle, an inmate at the New Hampshire State Prison
(“NHSP”), sought injunctive relief in this case to prevent the
destruction of his legal materials he needed to litigate this
case. 	Towle then alleged that enforcement of New Hampshire
Department of Corrections (“DOC”) Policy and Procedure Directive
(“PPD”) 9.02(N) would result in the destruction or denial of
access to those legal materials. 	See Aug. 8, 2016 Pet’r’s Mot.
for Inj. (Doc. No. 31). 	PPD 9.02(N) limits the volume of legal
material inmates may possess while incarcerated at the DOC. 	See
Feb. 5, 2018 Maj. Fouts Mem. (Doc. No. 122-2).
After an evidentiary hearing on Towle’s 2016 motion, the
undersigned magistrate judge recommended that the district judge
deny Towle’s request for an injunction, finding that Towle had
failed to meet his burden to demonstrate that he would suffer
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irreparable harm in the absence of an injunction. 	See Jan. 30,
2017 R&R (Doc. No. 56) (“January 30 R&R”), approved by Mar. 3,
2017 Order (Doc. No. 60). 	The court based its recommendation on
the testimony of then NHSP Warden Michael Zenk, as follows:
Zenk, through his testimony and counsel, has stated
unequivocally and under oath that Towle will continue
to have access to the legal materials currently at the
prison while this case is pending, and during any
appeal of this case to the First Circuit and the
United States Supreme Court. 	Further, if Towle is
successful in having his conviction reversed, and
needs to prepare for a retrial in this matter,
respondent has stated that Towle may request an
exception to PPD 9.02(N) to maintain necessary legal
materials in excess of two cubic feet, and that his
materials would not be destroyed while such a request
was pending. 	In light of Zenk’s testimony, the court
has no reason to doubt that any request to maintain
legal materials exceeding the limit in PPD 9.02(N)
that Towle makes in the future would be considered by
Zenk, who would make a reasonable determination of the
request. 	Any assertion that a reasonable request
would not be granted, in light of the evidence before
the court, is entirely speculative.
January 30 R&R, at 8.
Since the issuance of the January 30 R&R, Warden Zenk has
resigned. 	Before Warden Zenk left, Towle wrote an Inmate
Request Slip (“IRS”) to Warden Zenk asking what measures would
be in place to protect Towle’s legal materials and access to
those materials after Warden Zenk’s departure. 	See Feb. 26,
2018 IRS (Doc. No. 122-1), at 1. 	Warden Zenk responded: “The
procedure that exists will remain in place unless the Attorney
General’s office informs the Warden’s office that this
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arrangement is no longer required to give you access to the
court.” 	Id. 	Towle grieved Warden Zenk’s response to the DOC
Commissioner. 	See Mar. 6, 2018 Grievance Form (Doc. No. 122-3),
at 1. 	DOC employee Chris Kench denied the grievance on the
Commissioner’s behalf. 	See id.
Towle now asserts that the DOC has not “established
standards to evaluate inmate requests for exemptions to PPD
9.02(N),” and that the Attorney General’s office is not the
appropriate party to determine whether his legal materials
should be destroyed. 	Towle is concerned that without a specific
written exception to PPD 9.02(N), DOC staff would be free to
destroy his records with impunity in Warden Zenk’s absence.
Towle therefore seeks an order prohibiting the DOC from: 1)
denying Towle reasonable access to his legal materials which
exceed the volume of legal materials he is allowed under PPD
9.02(N), and/or 2) destroying any of his legal materials.
The respondent, in her objection to Towle’s instant motion,
argues that the injunctive relief requested is not appropriately
granted in a habeas action. 	The respondent further states that
Towle has not asserted: that he “has been thwarted in his access
to his materials” or “told that he must reduce” the amount of
legal materials he may maintain, or that he has otherwise been
denied the exception to PPD 9.02(N) allowed by Warden Zenk.
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Discussion
The respondent, in her objection to Towle’s request for an
injunction, argues that such relief is not available in a habeas
action.2
“Federal law opens two main avenues to relief on
complaints related to imprisonment: a petition for
habeas corpus, 28 U.S.C. § 2254, and a complaint under
the Civil Rights Act of 1871, Rev. Stat. § 1979, as
amended, 42 U.S.C. § 1983. 	Challenges to the validity
of any confinement or to particulars affecting its
duration are the province of habeas corpus.” 	An
inmate's challenge to the circumstances of his
confinement, however, may be brought under § 1983.
Hill v. McDonough, 547 U.S. 573, 579 (2006) (internal citations
omitted); see also Nelson v. Campbell, 541 U.S. 637, 643 (2004)
(“[C]onstitutional claims that merely challenge the conditions
of a prisoner’s confinement, whether the inmate seeks monetary
or injunctive relief, fall outside of [the core of habeas
corpus] and may be brought pursuant to § 1983 in the first
instance.”); Preiser v. Rodriguez, 411 U.S. 475, 498–99 (1973).
A habeas petitioner’s request that the court issue an
injunction to prevent the destruction of, and allow access to,
the petitioner’s legal materials is appropriately brought in a
§ 1983 action.
[Petitioner’s] request that the Court compel
Respondent to provide him his legal materials and
2The court notes that, for unknown reasons, the respondent
did not challenge Towle’s initial motion for injunctive relief
on the basis that such a request was not properly made in a
habeas action.
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allow him access to the prison law library—even if
granted—would not necessarily imply a change to the
duration or execution of his sentence. 	The same is
true regardless of whether the Court found that
restricting [Petitioner’s] access to legal materials
or placing him in segregation constitutes unlawful
retaliation against him. 	Rather, these are
conventional claims under 42 U.S.C. § 1983 because
[Petitioner] is alleging violations of his
constitutional rights by State actors during his
incarceration [in state prison].
Smith v. Mulgrave, No. 2015-0078, 2016 U.S. Dist. LEXIS 10763,
at *6-*7, 2016 WL 373953, at *3 (D.V.I. Jan. 29, 2016); see also
Hernandez v. Long, No. CV 13-4060-JVS (MAN), 2013 U.S. Dist.
LEXIS 85085, at *4, 2013 WL 3053140, at *2 (C.D. Cal. June 10,
2013) (habeas petitioner’s request for injunctive relief
requiring prison officials to replace lost or destroyed legal
documents “is not available through a habeas action,” and must
be raised in a civil rights action); Johnson v. Washington, No.
C05-1283P, 2005 U.S. Dist. LEXIS 34403, at *4-*5, 2005 WL
3242143, at *2 (W.D. Wash. Nov. 30, 2005) (request for an
injunction to prevent destruction of a prisoner’s legal
materials “must be brought in an action under § 1983, rather
than a habeas proceeding”).
The injunctive relief Towle seeks in his motion for
injunctive relief is not properly considered in this habeas
action, but may be asserted in a civil rights action brought
pursuant to § 1983. 	Accordingly, the district judge should deny
Towle’s motion for preliminary injunctive relief (Doc. No. 122)
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without prejudice to Towle’s ability to assert those claims
and/or requests in a pending or future civil rights action.
Conclusion
For the foregoing reasons, the district judge should deny
Towle’s motion (Doc. No. 122) for a preliminary injunction. 	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 specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the 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
November 19, 2018
cc: 	Robert V. Towle, pro se
Lynmarie C. Cusack, Esq.
Elizabeth C. Woodcock, Esq.
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