Tower v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Tower
v. Civil No. 16-cv-324-JL
Michael Zenk, Warden,
New Hampshire State Prison
REPORT AND RECOMMENDATION
Before the court is New Hampshire State Prison (“NHSP”)
inmate Michael Tower’s filing (Doc. No. 1), entitled “Motion for
Injunctive Relief and Order of Release,” and addenda to that
filing (Doc. Nos. 3, 5, 12, 15, 18). These filings are
construed together as the complaint in this matter. In the
complaint, Tower alleges that conditions of his confinement at
the NHSP have violated his federal constitutional rights and his
rights under state law. The complaint is before the court for
preliminary review. See 28 U.S.C. §§ 1915(e)(2), 1915A(a); LR
4.3(d)(1).
Also before the court is Tower’s motion (Doc. No. 2)
entitled “Resolvement of Action,” asking the court to schedule a
settlement conference in this case; and a motion (Doc. No. 14),
and supplement to that motion (Doc. No. 17), seeking an order
directing the NHSP to move Tower to a county house of
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 1 of 11

2
correction. Tower’s request for an order directing that he be
moved has been referred to this magistrate judge for proposed
findings of fact and a recommendation as to disposition.
Standard of Review
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)). The court may
dismiss the complaint upon preliminary review if the pleading
“fails to state a claim on which relief may be granted,” or if
the court lacks subject matter jurisdiction. 28 U.S.C.
§§ 1915(e)(2), 1915A; LR 4.3(d)(1).
Background
Tower is serving a one to five year sentence in the NHSP,
of which he has served almost four years. Tower’s sentencing
mittimus included the sentencing judge’s recommendation that
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 2 of 11

3
Tower complete the prison’s sexual offender treatment program
(“SOT”).
Tower’s filings here indicate that the Adult Parole Board
(“APB”), denied Tower parole on March 20, 2014, stating that
Tower would have to complete the SOT, and obtain a favorable
recommendation from the Administrative Review Committee (“ARC”),
which Tower states acts as a “preparole board” and makes
recommendations to the APB, to be granted parole prior to his
maximum release date. On August 5, 2015, Tower, after seeking a
parole hearing, was again told that he would have to complete
the SOT before the parole board would grant him another hearing.
In April 2014, Tower declined to accept sex offender
treatment because he wanted to get his “mental health issues”
dealt with, and that at the time he declined treatment, he
understood that doing so might result in having to serve his
maximum sentence. Tower agreed to notify the appropriate
treatment providers, in an Inmate Request Slip, when he wanted
to return to treatment.
A Department of Corrections (“DOC”) Classification Form
Tower has filed indicates that Tower was enrolled in the SOT as
of December 15, 2014. It appears, however, that Tower
subsequently left the SOT prior to completing the program, as on
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 3 of 11

4
August 28, 2015, Chris Hatal, the SOT Director, sent Towers
correspondence indicating that the SOT Treatment Review
Committee was “offering [Tower] an opportunity to return to the
SOT Treatment Pod to complete the Program,” if Tower was
interested. A DOC Classification Form attached to Tower’s
initial filing, signed by DOC Classifications Administrator Kim
Lacasse, dated December 9, 2015, however, states that Tower
“refuses program” and “wants to max out.”
On January 15, 2016, Tower sent an IRS to a member of the
SOT staff indicating that, rather than re-entering the SOT and
having to start that program over again, Tower would seek
treatment in the community after serving his maximum sentence.
Tower has submitted with his filings a letter from a community
sexual offender treatment provider indicating that he would be
accepted into that sexual offender treatment program after his
release from prison.
On January 26, 2016, Tower sent another IRS to the SOT
staff indicating that he cannot return to the SOT housing unit
until certain inmates then in the SOT had left that unit, and
that, should he return to the SOT, he would like to pick up
where he left off, without having to repeat programming he
completed when he was previously enrolled in the SOT. In a
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 4 of 11

5
response to that IRS, an SOT administrator indicated that there
was no record at the prison of Tower needing to be separated
from any other inmate, and thus, it was Tower’s choice not to
return to the SOT while certain inmates were there.
Tower’s Claims
Tower asserts the following claims for relief in this
action:
1. The defendant has violated Tower’s rights under N.H.
Rev. Stat. Ann. (“RSA”) § 504-a, by hindering or
interfering with Tower’s access to the SOT.
2. The defendant has violated Tower’s rights under the
Due Process Clause of the Fourteenth Amendment by requiring
Tower to complete the SOT prior to being considered parole
eligible, while: (a) denying Tower access to the SOT prior
to his minimum parole eligibility date, resulting in a
denial of Tower’s ability to be released on parole at his
minimum parole eligibility date; and (b) hindering and
interfering with Tower’s ability to enter and complete the
SOT, resulting in a likelihood that Tower will serve all,
or nearly all, of his maximum sentence.
3. The defendant has violated Tower’s rights under the
Equal Protection Clause of the Fourteenth Amendment by: (a)
requiring Tower, because he is a sexual offender, to
complete the SOT before being considered for parole, while
not categorically requiring inmates who are not sexual
offenders to complete particular programming; and (b)
requiring Tower, but not all sexual offenders, to obtain a
positive parole recommendation from the ARC prior to being
granted a parole hearing.
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 5 of 11

6
Discussion
I. N.H. Rev. Stat. Ann. § 504-a
Tower asserts that the defendant has violated his rights
under RSA § 504-a, a New Hampshire statute concerning
individuals who are on probation or parole supervision. Nothing
in that section provides Tower with any right to any particular
treatment while incarcerated, or to be paroled before the
expiration of his maximum sentence. Tower has not identified
any right accruing to him under RSA 504-a, or any other state
law, that the defendant has violated by the acts or omissions
described in Tower’s filings. Accordingly, Tower has failed to
state any claim for relief arising under state law.
II. Fourteenth Amendment
A. Due Process
Due process requirements apply only to the deprivation of
constitutionally protected interests in life, liberty, or
property. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976). A
convicted person has no constitutional right to, or liberty
interest in, conditional release from incarceration, on parole
or otherwise, “‘before the expiration of a valid sentence.’”
González–Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir. 2010)
(quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 6 of 11

7
442 U.S. 1, 7 (1979)). A right to parole under the Fourteenth
Amendment's Due Process Clause exists only if state law creates
that right. See Sandin v. Conner, 515 U.S. 472, 483–84 (1995);
Hamm v. Latessa, 72 F.3d 947, 954 (1st Cir. 1995). New
Hampshire has not created a liberty interest in the opportunity
to be granted parole that is protected by the Fourteenth
Amendment. See Chartier v. N.H. Dep’t of Corr., No. 16-cv-127-
PB, 2016 WL 3001274, at *3, 2016 U.S. Dist. LEXIS 64631, at *6
(D.N.H. Apr. 14, 2016), R&R approved, No. 16-cv-127-PB, 2016 WL
2888976, at *1, 2016 U.S. Dist. LEXIS 64635, at *1 (D.N.H. May
17, 2016).
Tower has failed to allege the violation of any right,
protected by the Fourteenth Amendment, accruing to him as a
result of his not being considered for or granted parole.
Accordingly, he has failed to state a Fourteenth Amendment due
process claim upon which relief might be granted, arising out of
the denial of parole, or the opportunity to obtain parole prior
to the expiration of his maximum sentence.
B. Equal Protection
“The Fourteenth Amendment’s Equal Protection Clause
prohibits a state from treating similarly situated persons
differently because of their classification in a particular
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 7 of 11

8
group.” Mulero-Carrillo v. Román-Hernández, 790 F.3d 99, 105-06
(1st Cir.), cert. denied, 136 S. Ct. 808 (2015).
To establish an equal protection claim, a plaintiff
needs to allege facts showing that (1) the person,
compared with others similarly situated, was
selectively treated; and (2) that such selective
treatment was based on impermissible considerations
such as race, religion, intent to inhibit or punish
the exercise of constitutional rights, or malicious or
bad faith intent to injure a person.
Davis v. Coakley, 802 F.3d 128, 132-33 (1st Cir. 2015) (internal
quotation marks and citations omitted); see also Hernandez v. New
York, 500 U.S. 352, 360 (1991).
“Some evidence of actual disparate treatment is a
‘threshold requirement’ of a valid equal protection claim.”
Ayala–Sepúlveda v. Munic. of San Germán, 671 F.3d 24, 32 (1st
Cir. 2012). To meet that requirement, Tower must “‘identify and
relate specific instances where persons situated similarly in
all relevant aspects were treated differently,’” to show that he
“‘was singled out for unlawful oppression.’” Id. (emphasis in
original) (citation omitted).
Tower’s allegations fail to demonstrate that any prison
official discriminated against him based on his membership in
any particular protected class or group. Further, Tower has not
shown that, to the extent he has been treated differently than
any other inmate, he was similarly situated to such inmate in
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 8 of 11

9
all relevant respects. Accordingly, Tower has failed to state a
Fourteenth Amendment equal protection claim upon which relief
might be granted.
III. Motion for Resolvement of Action (Doc. No. 2)
Tower has filed a motion (Doc. No. 2) seeking a settlement
conference in this case. Because Tower has failed to state any
claim upon which relief might be granted, and this action should
be dismissed, the district judge should deny that motion as
moot.
IV. Request for Order (Doc. Nos. 14, 17)
Tower seeks a preliminary injunction in the form of an
order directing the prison to transfer him to a county facility
for his safety, and to prevent his transfer to an out-of-state
prison. To obtain a preliminary injunction, Tower must
establish a likelihood of success on the merits of his
underlying claims, irreparable harm in the absence of
preliminary relief, a showing that the balance of equities tips
in plaintiff’s favor, and a showing that an injunction is in the
public interest. See Glossip v. Gross, 135 S. Ct. 2726, 2736
(2015). “In this circuit, proving likelihood of success on the
merits is the ‘sine qua non’ of a preliminary injunction. ‘[I]f
the moving party cannot demonstrate that he is likely to succeed
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 9 of 11

10
in his quest, the remaining factors become matters of idle
curiosity.’” Arborjet, Inc. v. Rainbow Treecare Sci.
Advancements, Inc., 794 F.3d 168, 173 (1st Cir. 2015) (citation
omitted). 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).
For the reasons discussed in this Report and
Recommendation, the court finds that Tower has failed to state
any claim upon which relief might be granted. Accordingly,
Tower has not met his burden to demonstrate that he is likely to
succeed on the merits of the claims asserted in this case.
Tower cannot demonstrate, therefore, that he is entitled to
injunctive relief, and the district judge should deny Tower’s
motion for a preliminary injunction (Doc. Nos. 14, 17).
Conclusion
For the foregoing reasons, this court recommends that the
district judge: dismiss the complaint (Doc. Nos. 1, 3, 5, 12,
15, 18) in its entirety for failure to state a claim upon which
relief might be granted; deny the motion seeking a settlement
conference (Doc. No. 2); and deny plaintiff’s motion for
preliminary injunctive relief (Doc. Nos. 14, 17). Any
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 10 of 11

11
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); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 28, 2016
cc: Michael Tower, pro se
Case 1:16-cv-00324-JL Document 20 Filed 12/28/16 Page 11 of 11