Gray v. NH Department of Corrections, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey M. Gray
v. Civil No. 15-cv-508-LM
Michael A. Zenk, Warden,
New Hampshire State Prison
REPORT AND RECOMMENDATION
Before the court in this habeas action are plaintiff
Jeffrey M. Gray’s four motions seeking preliminary and permanent
injunctive relief.1 See Doc. Nos. 17, 18, 23, 34. Respondent
objects. See Doc. No. 32. The motions have been referred to
the undersigned magistrate judge for a Report and Recommendation
as to disposition. See Sept. 15, 2016 Order; Oct. 20, 2016
Order; Feb. 27, 2017 Order.
Background
Gray is serving a lengthy prison sentence for a felony
sexual assault which is currently on appeal. He has filed this
habeas action challenging the constitutionality of his
1In two motions (Doc. Nos. 17, 18) Gray seeks a temporary
restraining order. Because the respondent has had the
opportunity to be heard in opposition to those motions, they are
construed as motions for preliminary injunctive relief under
Rule 65(a) of the Federal Rules of Civil Procedure.
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conviction and sentence.
Gray alleges that on September 2, 2016 and February 6,
2017, prison officials seized the legal materials Gray had in
his possession at those times, and have withheld those materials
from him since their seizure, pursuant to New Hampshire
Department of Corrections Policy and Procedure Directive (“PPD”)
9.02(N), which took effect in 2016, limiting the amount of legal
material an inmate may possess. PPD 9.02(N) also requires legal
materials that exceed that volume to be sent out of the prison
or destroyed. Gray asserts that the resulting lack of access to
his legal materials threatens his constitutionally protected
rights to meaningfully access the courts and to petition the
government for a redress of grievances. Gray seeks an Order
from this court requiring the prison to allow him to access his
legal materials, and to allow him to keep materials at the
prison, in a manner that allows him access to those materials,
in excess of what is permitted by PPD 9.02(N), asserting that he
needs such materials to litigate his active cases in this court
and the state courts.
Gray also asserts that prison officials threatened to
transfer him to less favorable housing conditions in retaliation
for exercising his First Amendment right to petition the
government for a redress of grievances. Gray therefore seeks an
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Order from this court prohibiting prison officials from moving
him out of state, or within the state but to less favorable
housing conditions, during the pendency of this action.
Discussion
I. Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits,” of the
claims underlying his action, “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.’” Glossip v. Gross, 135 S. Ct. 2726,
2736 (2015) (citation omitted). The court may rule on a motion
for a preliminary injunction on the papers if it has before it
“‘adequate documentary evidence upon which to base an informed,
albeit preliminary conclusion,’” and the parties have been
afforded “‘a fair opportunity to present relevant facts and
arguments to the court, and to counter the opponent’s
submissions.’” Campbell Soup Co. v. Giles, 47 F.3d 467, 470-71
(1st Cir. 1995) (citations omitted). The parties have had such
an opportunity to date, and an additional opportunity for
briefing is provided by the objection period that follows the
issuance of this Report and Recommendation.
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II. Availability of Relief
“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) (quoting Muhammad v.
Close, 540 U.S. 749, 750 (2004) (per curiam)); see also Nelson
v. Campbell, 541 U.S. 637, 643 (2004) (“constitutional 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 [42 U.S.C.] § 1983 in the first instance”);
Preiser v. Rodriguez, 411 U.S. 475, 498–99 (1973). Where a
habeas petitioner “seeks relief unrelated to his habeas
petition. . . [t]he court does not have jurisdiction to consider
such claims as part of a habeas petition.” Kyricopoulos v.
Murphy, No. 16-cv-12431-IT, 2017 U.S. Dist. LEXIS 46643, at *4,
2017 WL 1190376, at *2 (D. Mass. Mar. 29, 2017), appeal filed,
No. 17-1374 (1st Cir. Apr. 14, 2017).
[Petitioner’s] request that the Court compel
Respondent to provide him his legal materials and
allow him access to the prison law library—even if
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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.
Smith v. Mulgrave, No. CV 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, 2005 WL 3242143,
at *2 (W.D. Wash. Nov. 30, 2005) (request for an injunction to
prevent destruction of a prisoner’s legal materials is a “claim
that he is being denied access to his legal materials,” and “is
essentially a claim under § 1983”).
In the instant motions, Gray seeks an order which: 1)
prohibits prison officials from destroying or withholding Gray’s
legal materials, to protect his right to access the courts; and
2) prohibits prison officials from transferring him to less
favorable housing conditions or to an out-o-state facility to
protect his right to petition the government for a redress of
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grievances. The injunctive relief Gray seeks in the instant
motions for preliminary and permanent injunctions 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 Gray’s motions for
preliminary and permanent injunctive relief (Doc. Nos. 17, 18,
23, 34), and dismiss such claims from this case, without
prejudice to Gray’s ability to assert those claims and/or
requests in a pending or future civil rights action.2
Conclusion
For the foregoing reasons, petitioner’s motions for
preliminary and permanent injunctive relief (Doc. Nos. 17, 18,
23, 34) should be denied, and such claims should be dismissed
from this case, without prejudice to Gray’s ability to assert
such claims in a civil action brought under 42 U.S.C. § 1983.
Any objections to this Report and Recommendation must be filed
2It is the court’s understanding, as respondent has
represented in his objection to preliminary injunctive relief in
this case, see Doc. No. 32, at 1, that Gray’s legal materials
have not been destroyed, in compliance with previously issued
orders in this case and orders in Gray v. Perkins, 14-cv-386-PB,
Gray’s pending 42 U.S.C. § 1983 action. While the court
recommends that Gray’s requested injunctive relief be denied in
this case, that recommendation does not extend to any pending
request or outstanding order in the § 1983 case.
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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); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 1, 2017
cc: Jeffrey M. Gray, pro se
Elizabeth C. Woodcock, Esq.
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