Logsdon v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Logsdon
v. Civil No. 16-cv-502-LM
William Wrenn, Commissioner,
New Hampshire Department of
Corrections, et al.1
REPORT AND RECOMMENDATION
Before the court is plaintiff Timothy Logsdon’s motion for
a preliminary injunction (Doc. No. 2). Defendants filed an
objection (Doc. No. 20), and Logsdon filed a reply (Doc. No.
29). Defendants filed a surreply (Doc. No. 34), and Logsdon
filed a response to that surreply (Doc. No. 35). Logsdon’s
request for preliminary injunctive relief has been referred to
the undersigned magistrate judge for a report and recommendation
as to disposition. See July 13, 2017 Order.
Background
Logsdon, an inmate at the New Hampshire State Prison
1The defendants named in the complaint are New Hampshire
Department of Corrections (“DOC”) Commissioner William Wrenn,
New Hampshire State Prison (“NHSP”) Warden Michael Zenk, NHSP
Director of Security and Training Chris Kench, and (former) DOC
Victim Services Coordinator Amanda Breen. Each of these
defendants is sued in his or her individual and official
capacities.
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 1 of 16

2
(“NHSP”), is serving a 10-30 year sentence for a 2006 felony
sexual assault committed against his then three-year-old
daughter, J.L. In his motion for preliminary injunctive relief,
Logsdon claims that the defendants are improperly denying him
visits with his three minor children, J.L., P.L., and F.L.,
their mother Marylisa Logsdon, from whom he is divorced, and his
ten-year-old nephew, in violation of Logsdon’s First Amendment
right to familial association. Logsdon seeks an Order from this
court directing prison officials to approve Logsdon’s children,
ex-wife, and minor nephew to visit him at the prison.
The court gleans the following facts from parties’
submissions in this matter. Logsdon was sentenced in December
2009 in the New Hampshire Superior Court. See State v. Logsdon,
No. 219-2009-CR-00190 (N.H. Super. Ct., Strafford Cty.). At
that time, the sentencing court imposed, as a condition of
Logsdon’s sentence, that Logsdon have no contact with J.L.
“except as allowed by Family Court orders,” no unsupervised
contact with children younger than sixteen, and no contact with
Marylisa. Id. (Order Dec. 9, 2009).
On March 31, 2010, the Dover Family Court (“DFC”) issued a
Final Parenting Plan (“FPP”) in Logsdon’s divorce proceedings.
The FPP indicated that Logsdon could exchange letters with his
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 2 of 16

3
children as recommended and permitted by J.L.’s therapist, Nancy
Hoag, who is also the family therapist for F.L. and P.L., and
that the children’s telephone or in-person contact with Logsdon,
while not recommended by the therapists at the time the FPP
issued, could occur in the future if, when, and under such
conditions as may be recommended by the children’s therapists.
In February 2013, Logsdon requested and received approval
for his children to visit him at the prison. In June 2015,
Logsdon requested and received approval for Marylisa to visit
him. In December 2015, the children, Marylisa, and other
relatives of Logsdon participated in a family holiday party held
at the prison. Logsdon further alleges that he had other visits
with his children and Marylisa, which were conducted without
incident and in accordance with the children’s therapists’
recommendations. Logsdon also had at least one visit with his
nephew, who, in December 2009, had been approved to visit
Logdson with an adult escort, prior to the removal of his nephew
from his approved visitors’ list.
In May 2016, Logsdon requested approval for his children
and Marylisa to attend a Father’s Day event at the prison to be
held the following month. The request was denied, as his
children and Marylisa had been removed from his active visitor
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 3 of 16

4
list. In response to Logsdon’s inquiry, defendant Amanda Breen,
who was then the Administrator of Victim Services for the New
Hampshire Department of Corrections, advised Logsdon that the
visits were disallowed because the terms of Logsdon’s sentence
and the FPP included specific approval of written correspondence
between Logsdon and his children, but did not provide specific
information concerning visits.
The prison initially stated that his visitation approvals
had been revoked because his sentence and/or the FPP included a
“no contact with minors” provision. Logsdon’s initial
sentencing order included the following provision: No contact
with J.L. except as allowed by Family Court orders. No
unsupervised contact with any child under 16 years of age. No
contact with Marylisa Logsdon.” State v. Logsdon, No. 219-2009-
CR-00190 (N.H. Super. Ct., Strafford Cty. Dec. 1, 2009). On
August 25, 2016, the sentencing court amended Logsdon’s sentence
to remove the contact limitations included in his sentence,
pursuant to State v. Towle, 167 N.H. 315 (2015).2 Logsdon
advised Amanda Breen, the New Hampshire Department of
2In Towle, the New Hampshire Supreme Court found that New
Hampshire sentencing courts exceeded their statutory sentencing
authority by including a “no contact” order as part of a
sentence.
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 4 of 16

5
Corrections (“DOC”) Administrator of Victim Services, that his
sentencing order had been amended to remove the limitations on
contact with his children and Marylisa. Breen, and other prison
officials, agreed to look into the matter and to advise Logsdon
as to whether visits with his children and Marylisa would be
reinstated.
On August 26, 2016, Hoag sent a letter to Breen and Zenk,
advising them that it was the recommendation of Hoag, as well as
P.L.’s individual therapist, that the children be allowed to
visit their father if they wanted to, in accordance with terms
established by the therapist, including, among other things, the
supervision of the visits by Marylisa and another adult,
limitations on physical contact and affection between Logsdon
and the children, and the ability of the children to refuse or
terminate the visit at any time. See Aug. 26, 2016 Letter (Doc.
No. 13-1) (“August 26 Letter”). After receiving the August 26
Letter, Breen and other prison officials were concerned that
Hoag did not have sufficient information concerning the prison’s
limited ability to provide supervision for Logsdon’s visits to
ensure that the conditions identified as necessary by Hoag were
met. Further, prison officials were concerned that Hoag had
made her recommendations without first having seen a copy of the
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 5 of 16

6
sexual offender evaluation Logsdon had undergone at the prison.
In November 2016, in an email, Hoag told Breen that she
would send a revised letter with updated recommendations as to
Logsdon’s visits with his children once she received a copy of
Logsdon’s sexual offender evaluation. While it appears that
Logsdon refused to consent to Breen sending Hoag a copy of the
evaluation, it further appears that Logsdon sent Hoag a copy of
the evaluation himself after November 2016.
Hoag also noted in the November 2016 email that J.L. had
elected not to have telephone or in-person visits with her
father. That statement concerned Breen, as it was seemingly
inconsistent with Hoag’s statement in the August 26 Letter that
J.L. had felt safe and comfortable during her previous visits
with her father.
In two letters sent in March 2017,3 Hoag clarified her
previous statements and stated that J.L. had not regretted her
prior visits with Logsdon, but had simply changed her mind in
the fall of 2016 about continuing those visits. Further, Hoag
stated, J.L. wanted the opportunity to have telephone or in-
3Breen resigned her position with the DOC in February 2017.
After that, Hoag’s communications were with NHSP Warden Michael
Zenk and the new DOC Victim Services Administrator Nicole
Kipphut.
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 6 of 16

7
person contact with Logsdon if she so desired in the future.
Hoag also stated that P.L. and F.L. continued to want to have
telephone and in-person contact with Logdson, and that Hoag
continued to recommend that all of the children be allowed, at
their option, to have such contact. Hoag did note that, to the
extent Logsdon’s successful participation in sexual offender
treatment at the prison was conditioned on limitations on some
or all contact with his children, she supported the enforcement
of those limitations.
The record in this case indicates that Logsdon has now
begun sexual offender treatment and that, as a condition of
admission to that program, Logsdon had to agree not to attempt
to contact J.L. The record further indicates that Logsdon is
prevented from having contact with his other children, his ex-
wife, or his nephew, at this time, only by the refusal of prison
officials to approve those individuals for visits.
Discussion
I. Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 7 of 16

8
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 Voice
of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d
26, 32 (1st Cir. 2011). “[T]he first two factors, likelihood of
success on the merits and of irreparable harm, [are] ‘the most
important’” in the calculus.” Bruns v. Mayhew, 750 F.3d 61, 65
(1st Cir. 2014); see Sindicato Puertorriqueño de Trabajadores,
SEIU Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012) (per
curiam) (“Though each factor is important . . . ‘the sine qua
non of [the] four-part inquiry is likelihood of success on the
merits: if the moving party cannot demonstrate that he is likely
to succeed in his quest, the remaining factors become matters of
idle curiosity.’” (citation and alterations omitted)); Esso Std.
Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18 (1st Cir. 2006) (if
movant cannot demonstrate likelihood of success on the merits,
preliminary injunctive relief is properly denied without further
analysis); Voice of the Arab World, Inc., 645 F.3d at 32
(“‘[P]erhaps the single most important prerequisite for the
issuance of a preliminary injunction is a demonstration that if
it is not granted the applicant is likely to suffer irreparable
harm before a decision on the merits can be rendered.’” (quoting
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 8 of 16

9
11A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure
§ 2948, at 129 (2d ed. 1995))). The burden of proof is on the
movant. See Esso Std. Oil Co., 445 F.3d at 18.
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 is provided by the
objection period that follows the issuance of this Report and
Recommendation.
II. First Amendment Right to Familial Association
While a prisoner loses many of his constitutional rights
upon incarceration, he “retains those First Amendment rights
that are not inconsistent with his status as a prisoner or with
the legitimate penological objectives of the corrections
system.” Pell v. Procunier, 417 U.S. 817, 822 (1974).
“[F]reedom of association is among the rights least compatible
with incarceration,” and “[s]ome curtailment of that freedom
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 9 of 16

10
must be expected in the prison context.” Overton v. Bazzetta,
539 U.S. 126, 131 (2003).
Prison policies limiting the First Amendment right of
association will be deemed valid if the limiting regulations are
reasonably related to legitimate penological objectives. See
Overton, 539 U.S. at 132 (citing Turner v. Safley, 482 U.S. 78,
89 (1987)).
Four factors are relevant in making this
determination: “(1) whether there is a valid, rational
connection between the regulation and the legitimate
government interest put forward to justify it; (2)
whether alternative means to exercise the right exist;
(3) the impact that accommodating the right will have
on prison resources; and (4) the absence of
alternatives to the prison regulation.”
Lebaron v. Spencer, 527 F. App’x 25, 31–32 (1st Cir. 2013)
(quoting Kuperman v. Wrenn, 645 F.3d 69, 74 (1st Cir. 2011)). A
court evaluating a claim that a prison regulation interfered
with an inmate’s rights under the First Amendment must accord
prison administrators significant deference in defining
legitimate goals for the corrections system, and for determining
the best means of accomplishing those goals. See Overton, 539
U.S. at 132. The inmate bears the burden of showing that the
policy was not reasonably related to legitimate objectives, and
was instead an exaggerated response. See id.
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 10 of 16

11
In this case, prison officials have restricted the exercise
of Logsdon’s First Amendment right to familial association
during his incarceration by removing Logsdon’s children, their
mother, and Logsdon’s nephew from Logsdon’s approved visitor
list, resulting in Logsdon’s inability to have in-person visits
with those individuals. Applying the factors set forth above,
the court therefore considers whether the restriction is
reasonable.
A. Logsdon’s Children
Defendants contend that the restriction on Logsdon’s visits
was effected with the objectives of protecting Logsdon’s
children’s safety, and to enforce the FPP. In support of that
contention, defendants assert that the prison does not have the
ability to insure that visits between Logsdon and his children
are conducted in accordance with the guidelines Hoag has
identified as necessary to protect the children, due to the
limited personnel resources available in the visiting room.
Because the FPP requires that any in-person visits between
Logsdon and his children occur in accordance with Hoag’s
guidelines, the prison, therefore, is also unable to insure that
Logsdon’s visits with his children will comply with the FPP.
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 11 of 16

12
As to the first factor, the protection of child visitors at
the prison is a legitimate penological interest. See Overton,
539 U.S. at 133 (restrictions on prison visitation by children
serve legitimate penological interest in “protecting children
from harm”). To the extent the visit restriction was imposed to
insure compliance with the FPP, a court order insuring the
protection of the children’s safety concerning contact with
Logsdon, the basis for the restriction is equally legitimate.
The restriction is thus rationally related to the DOC’s valid
interest in protecting children from harm and complying with
court orders.
As to the second factor, Logsdon has not shown that he has
no alternative means of protecting his First Amendment right to
maintain a familial association with his children.
“Alternatives to visitation need not be ideal, however; they
need only be available.” Overton, 539 U.S. at 135 (finding
phone calls are sufficient substitutes to protect an inmate's
First Amendment right to visitation). The record reflects that
prison officials have not sought to prevent or restrict his
ability to correspond with his children in writing, or to speak
to with them by telephone. Those means of associating with his
children remain available to him.
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 12 of 16

13
Regarding the third factor, concerning the impact of
accommodating Logsdon’s visits with his children, defendants
assert that the NHSP visiting room staff resources are
insufficient to ensure the children’s safety during such visits.
Logsdon has not demonstrated that accommodating his request for
visits with his children would not create a need for significant
reallocation of DOC personnel, to ensure that Logsdon’s visits
with his children were in compliance with the FPP. Logsdon
suggests that the adults accompanying his children to the prison
visits, with Hoag’s approval, would be able to insure compliance
with the FPP. The court will not second guess prison officials’
decision not to relinquish their interest in insuring the safety
of children visiting the prison to third parties. Plaintiff did
not offer evidence of any alternative means of accommodating his
asserted right to visit with his children that would not impose
more than a de minimus strain on the NHSP’s resources. Logsdon
has thus failed to demonstrate that the restriction on Logsdon’s
ability to visit with his children was an exaggerated response
to the defendants’ legitimate concern with the safety of the
children and compliance with the FPP.
Accordingly, the court concludes that, while the
restriction on Logsdon’s visits with his children impinges on
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 13 of 16

14
his First Amendment right to familial association, it does not
do so in an unconstitutional manner. Because Logsdon has not
demonstrated that his First Amendment rights have been
unconstitutionally abridged, he has not demonstrated that he is
likely to succeed on the merits of his First Amendment claim,
with respect to the restrictions relating to his children.
B. Ex-Wife, Nephew, and Other Relatives Who Are Minors
Logsdon has asserted that he has not been allowed visits
with his ex-wife, nephew, and other relatives who are minors.
However, Logsdon has not demonstrated that these family members
want to visit him (other than to the extent Marylisa must
accompany the children on their visits with Logsdon), and that
he has requested and been denied visits, that do not include his
children, with any other family member, after the August 25,
2016 rescission of the contact limitations in his sentencing
order. Accordingly, as to relatives other than his children,
Logsdon has failed to show that he cannot receive such visits
without a court order, and has thus failed to show that he will
be irreparably harmed if the court fails to order the prison to
allow those visits. For that reason, injunctive relief should
be denied at this time as to visits with his ex-wife, minor
nephew, and other relatives under the age of eighteen.
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 14 of 16

15
III. Fourteenth Amendment Right to Due Process
In this action, Logsdon has asserted that his right to
procedural due process was violated when his visits with his
children, Marylisa, and his nephew were restricted without
notice or process. Due process requirements apply only to the
deprivation of protected interests in life, liberty, or
property. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976);
González-Fuentes v. Molina, 607 F.3d 864, 880 n.13 (1st Cir.
2010). For the reasons stated above, Logsdon has failed to
assert the deprivation of a protected liberty interest in
familial association. Accordingly, Logsdon cannot demonstrate
that he was entitled to procedural due process under the
Fourteenth Amendment, and therefore has failed to demonstrate
that he is likely to succeed on his due process claim.
IV. Preliminary Injunctive Relief
Because the court finds that Logsdon has failed to
demonstrate that he is likely to succeed on the merits of his
claims in this action, he is not entitled to preliminary
injunctive relief. See Sindicato Puertorriqueño, 699 F.3d at 10
(“‘[I[f the moving party cannot demonstrate that he is likely to
succeed in his quest, the remaining factors become matters of
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 15 of 16

16
idle curiosity.’” (citation omitted)). Accordingly, the motion
for preliminary injunctive relief should be denied.
Conclusion
For the foregoing reasons, the district judge should deny
plaintiff’s motion for a preliminary injunction (Doc. No. 2).
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); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
July 25, 2017
cc: Timothy A. Logsdon, pro se
Heather Dunion Neville, Esq.
Kenneth A. Sansone, Esq.
Case 1:16-cv-00502-LM Document 38 Filed 07/25/17 Page 16 of 16