Logsdon v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Logsdon
v. 	Case No. 16-cv-502-LM
William Wrenn, Commissioner,
New Hampshire Department of
Corrections, et al.1
SUPERSEDING REPORT AND RECOMMENDATION
Plaintiff Timothy Logsdon, an inmate at the New Hampshire
State Prison (“NHSP”), seeks monetary and injunctive relief,
claiming that the defendants violated his constitutional rights
by denying him visits from certain family members. 	Invoking 42
U.S.C. § 1983, Logsdon alleges that the restrictions on his
family’s visits violate his First, Fifth and Fourteenth
Amendment rights of familial association. 	Before the court is
defendants’ motion for summary judgment (Doc. No. 50), to which
plaintiff has objected (Doc. No. 56). 	Defendant’s motion has
been referred to the undersigned magistrate judge for a report
and recommended disposition. 	See Aug. 1, 2018 Order; LR 72.1.
For the reasons that follow, the district court judge should
grant the defendant’s motion for summary judgment.
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.
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Summary Judgment Standard
“The purpose of summary judgment is to enable a court ‘to
pierce the boilerplate of the pleadings and assay the parties’
proof in order to determine whether trial is actually
required.’” 	Fernández-Salicrup v. Figueroa-Sancha, 790 F.3d
312, 328 (1st Cir. 2015) (citation omitted). 	“Summary judgment
is warranted if the record, construed in the light most
flattering to the nonmovant, ‘presents no genuine issue as to
any material fact and reflects the movant’s entitlement to
judgment as a matter of law.’” 	Lawless v. Steward Health Care
Sys., LLC, 894 F.3d 9, 20-21 (1st Cir. 2018) (citation omitted);
see Fed. R. Civ. P. 56(a)). 	At summary judgment, “[a]n issue is
‘genuine’ if the evidence would enable a reasonable factfinder
to decide the issue in favor of either party.” 	Irobe v. U.S.
Dep’t of Agric., 890 F.3d 371, 377 (1st Cir. 2018). 	“A fact is
‘material’ when its (non)existence could change a case’s
outcome.” 	Mu v. Omni Hotels Mgmt. Corp., 882 F.3d 1, 5 (1st
Cir.), review denied, 885 F.3d 52 (1st Cir. 2018).
To obtain summary judgment, “[t]he moving party must
affirmatively demonstrate that there is no evidence in the
record to support a judgment for the nonmoving party.” 	Celotex
Corp. v. Catrett, 477 U.S. 317, 332 (1986). 	“This demonstration
must be accomplished by reference to materials of evidentiary
quality, and that evidence must be more than ‘merely
colorable.’” 	Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853
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(1st Cir. 2016) (citation omitted). 	Once the moving party makes
the required showing, “‘the burden shifts to the nonmoving
party, who must, with respect to each issue on which [it] would
bear the burden of proof at trial, demonstrate that a trier of
fact could reasonably resolve that issue in [its] favor.’” 	Id.
(citation omitted). 	The nonmoving party’s failure to prove any
essential element of a claim “‘necessarily renders all other
facts immaterial.’” 	Delgado v. Aero Inv. Corp., 601 F. App’x
12, 15 (1st Cir. 2015) (quoting Celotex Corp., 477 U.S. at 323).
The nonmoving party’s failure to make the requisite showing
“entitles the moving party to summary judgment.” 	Flovac, Inc.,
817 F.3d at 853.
At the summary judgment stage, the court draws “‘all
reasonable inferences in favor of the non-moving party,’ but
disregard[s] ‘conclusory allegations, improbable inferences, and
unsupported speculation.’” 	Fanning v. FTC, 821 F.3d 164, 170
(1st Cir. 2016) (citation omitted). 	When ruling on cross
motions for summary judgment, the court applies the same
standard of review, but each motion is viewed separately, with
all inferences drawn in favor of the nonmoving party. 	See
Cooper v. D’Amore, 881 F.3d 247, 249-50 (1st Cir. 2018)
(citation omitted).
Background
The following facts, culled from the parties’ filings to
date, are undisputed except as otherwise noted. 	Logsdon is
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serving a ten-to-thirty year sentence, imposed in December 2009,
for a 2006 felony sexual assault committed against his then
three-year old daughter, J.L. 	See Dec. 1, 2009 Sentencing
Order, State v. Logsdon, No. 219-2009-CR-190 (N.H. Super. Ct.,
Strafford Cty.) (Doc. no. 20-6). 	As a condition of Logsdon’s
sentence, the sentencing court prohibited Logsdon from: 	having
contact with J.L. “except as allowed by Family Court orders,”;
having unsupervised contact with children younger than sixteen;
and having contact with his ex-wife and mother of his three
children, Marylisa. Id.
In March 2010, the Family Court issued a Final Parenting
Plan (“FPP”) in the Logsdons’ divorce proceedings. 	See Mar. 31,
2010 FPP, In re Logsdon, No. 632-2009-DM-9 (N.H. Cir. Ct. - 7th.
Cir. – Family Div.) (Doc. No. 50-4). 	The FPP provided that
Logsdon could exchange letters with his three children – J.L.,
F.L., and P.L. (then ages six, four and nine, respectively) – to
the extent recommended and permitted by J.L.’s therapist, Nancy
Hoag, who also served as the family therapist for F.L. and P.L.
The FPP further provided that the children’s telephone or in-
person contact with Logsdon, while not recommended at the time
the FPP issued, could occur in the future if, and under such
circumstances, 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 NHSP. 	In June 2015, he
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received approval for Marylisa to visit him. 	In December 2015,
Marylisa and the three children attended a holiday party at the
NHSP. 	June 5, 2018 Decl. of Nicole D. Kipphut (Doc. No. 50-2)
(“Kipphut Decl.”), ¶ 8. 	During that event, J.L. became visibly
upset, crying through at least part of the visit. 	Id. at ¶¶ 8,
18; Breen Decl. (Doc. No. 20-1), ¶ 15; March 31, 2017 Letter of
Nancy Hoag (“March 2017 Hoag Letter”), (Doc. No. 29), at 19.2
After the holiday visit, then-Victim Services Coordinator
Breen reviewed the pertinent sentencing and family court orders
and interpreted them as barring Logsdon from having contact with
J.L., Marylisa or children under the age of sixteen. 	Id. at ¶
9. 	Breen then removed Marylisa, J.L., F.L., P.L. and Logsdon’s
minor nephew from his approved visitor list. 	See id.
In May 2016, Logsdon requested approval for his children
and Marylisa to attend a Father’s Day event at the NHSP
scheduled for June 2016. 	The request was denied, owing to the
fact that those family members had been removed from Logsdon’s
visitor list. 	When Logsdon inquired further as to the reason
2The parties dispute the duration of J.L.’s crying during
the December 2015 visit. 	Logsdon asserts that he only saw JL
cry during the first few minutes of the visit. 	See Pltff. Resp.
to Def. Obj. to Pltff. Mot. For Injunctive Relief (Doc. No. 29)
at 3. 	Then NHSP Victim Services Coordinator indicated that Dr.
Hoag told her that J.L. was crying “throughout” the visit. Breen
Decl. (Doc. No. 20-1) ¶ 15. 	Marylisa’s sister observed that
J.L. “tear[ed] up at times during the visit.” 	See March 16, 2017
Letter, Def. Mem., Exh. A-5. 	For her part, Hoag wrote that she
“share[d] with Ms. Breen that JL said she cried at the visit and
that [she] was not sure why she cried.” 	March 2017 Hoag Letter
(Doc. No. 29), at 19.
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his request was denied, he was informed in writing that the
visits were denied because the NHSP administration had
determined that the FPP only allowed contact by letters through
the children’s therapist and the Sentencing Order did not allow
Logsdon to have any contact with J.L. 	See June 27, 2016 Inmate
request (Doc. No. 50-5.).
On August 25, 2016, the state sentencing court amended
Logsdon’s sentence to remove the family contact limitations, in
accordance with State v. Towle, 167 N.H. 315 (2015), in which
the New Hampshire Supreme Court held that a sentencing court
exceeded its statutory authority by including a “no contact”
provision in a sentence. 	Logsdon brought the sentencing change
to Breen’s attention.
The next day, August 26, 2016, Dr. Hoag advised Breen and
then Warden Michael Zenk in writing that she and P.L.’s
individual therapist had recommended 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 of Nancy Hoag (Doc. No. 13-1) (“August 2016 Hoag
Letter”). 	After receiving the August 26 Hoag letter, Breen and
other prison officials were concerned that Dr. Hoag did not have
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sufficient information concerning the prison’s limited ability
to provide supervision for Logsdon’s visits to ensure that the
conditions Hoag identified as necessary were met. 	See Breen
Decl. (Doc. No. 20-1) at ¶¶ 11-12. 	Breen also expressed concern
that Logsdon’s adult family members had already brought J.L. to
visit Logsdon at the NHSP in apparent violation of court orders
in effect at the time of those visits. 	Id. at ¶ 7. 	Also,
prison officials were concerned that Hoag had made her
recommendations without first having seen the sexual offender
evaluation Logsdon had undergone at the prison and apparently
without being aware that the prison’s sexual offender program
requires participants to agree that they will not attempt to
have contact with their victim(s). 	Id. at ¶ 16.3
In a November 2016 email, Dr. Hoag told Breen that she
would send a revised letter with updated recommendations as to
3Logsdon disputes the NHSP administration’s interpretation
of the existing court orders. 	He asserts that Dr. Hoag did, in
fact, recommend the children’s visits, in compliance with the
court orders. 	Pltff. Mem. (Doc. No. 56) at 2. 	While Hoag
confirmed that she did recommend the visit, as required, she
also noted that she did not communicate her recommendation to
the NHSP. 	See August 2016 Hoag Letter (Doc. 20-4) at 2. 	Thus,
it appears from the record that, at the time Breen removed
Logsdon’s family members from his approved visitor list and
subsequently denied his request for approval for their
attendance at the Father’s Day event, neither Breen nor anyone
else at the NHSP was aware of Hoag’s recommendation. 	It does
not appear from the record that Logsdon informed NHSP of the no-
contact order, as required by New Hampshire Department of
Corrections Policy and Procedure Directive (“PPD”)
7.09(IV)(I)(2) (Doc No. 50-3).
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Logsdon’s visits with his children after reviewing Logsdon’s
sexual offender evaluation. 	While it appears that Logsdon
refused to consent to Breen sending Dr. Hoag a copy of the
evaluation, it appears that Logsdon himself sent Hoag a copy of
the evaluation himself after November 2016. 	Dr. 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 Dr.
Hoag’s statement in the August 26 Hoag Letter that J.L. had felt
safe and comfortable during her previous visits with her father.
In two letters sent in March 2017,4 Dr. 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, Dr.
Hoag stated, J.L. wanted the opportunity to have telephone or
in-person contact with Logsdon if she so desired in the future.
Dr. Hoag also stated that P.L. and F.L. continued to want to
have telephone and in-person contact with Logsdon, and that Dr.
Hoag continued to recommend that all of the children be allowed,
at their option, to have such contact. 	Dr. Hoag did note that,
to the extent Logsdon’s successful participation in sexual
offender treatment at the prison was conditioned on limitations
4Breen resigned her position with the DOC in February 2017.
After that, Hoag’s communications were with then NHSP Warden
Michael Zenk and the new DOC Victim Services Administrator,
Nicole Kipphut.
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on some or all contact with his children, she supported the
enforcement of those limitations.
Subsequent to the change in sentencing conditions and the
receipt of Dr. Hoag’s recommendations, NHSP officials returned
Logsdon’s then 16-year old son, his ex-wife and his nephew to
Logsdon’s approved visitor list. 	See Kipphut Decl. (Doc. No.
50-2) at ¶ 9. 	Logsdon may not have visits with J.L. (the
victim) pursuant to the sex offender treatment agreement he
signed in April 2017. 	See Pltff. Mem. (Doc. No. 56), at 3. 	The
NHSP has not approved Logsdon’s minor, female children – J.L.
(age 15) and F.L. (age 13) - for visitation with him. 	NHSP
officials do not believe they can comply with Dr. Hoag’s
visitation restrictions because the NHSP does not have
sufficient personnel to monitor such visits in accordance
therewith. 	Moreover, given how NHSP perceived Logsdon’s
relatives’ inability to remove J.L. after she became upset
during her previous visit, prison officials do not believe they
can ensure that any visits remain “strictly voluntary,” as Dr.
Hoag recommended. 	Id. at ¶¶ 9, 18.
Discussion
I. 	First Amendment Right of Association
While an individual loses many of his constitutional rights
upon incarceration, he “retains those First Amendment rights
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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). 	As
particularly relevant here, “freedom of association is among the
rights least compatible with incarceration,” and “[s]ome
curtailment of that freedom must be expected in the prison
context.” 	Overton v. Bazzetta, 539 U.S. 126, 131 (2003). 	An
inmate does not have a constitutionally-protected interest in
unfettered visitation, as a means of exercising his right to
familial association. 	Ky. Dep't of Corrs. v. Thompson, 490 U.S.
454, 460 (1989). 	The Constitution is not offended where
reasonable restrictions are placed on visitation in the prison
context. 	See Wirsching v. Colorado, 360 F.3d 1191, 1198 (10th
Cir. 2004) (citing Overton, 539 U.S. at 131).
In evaluating a claim that a prison regulation interfered
with an inmate's rights under the First Amendment, the court
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.
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
id. (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
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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)). 	Where jail policies address legitimate concerns,
the inmate bears the burden of showing that the policy was
an exaggerated response to those concerns. 	See Overton,
539 U.S. at 132.
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 minor children
and minor nephew from his approved visitor list, resulting in
Logsdon’s inability to have in-person visits with those
individuals.5 	The defendants argue that that the restriction on
Logsdon’s visits was effected with the objectives of protecting
Logsdon’s children’s safety, and to enforce the FPP.6 	In support
of that contention, defendants assert that the prison does not
have the ability to ensure that visits between Logsdon and his
children are conducted in accordance with the guidelines Dr.
5The record indicates that Logsdon’s teenage son, nephew,
and ex-wife have been returned to the approved visitor’s list.
6See supra, n.4; PPD (Doc. No. 50-3), at 3.
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Hoag identified as necessary to protect the children, due to the
limited personnel resources available in the visiting room.7 	And
because the FPP requires that any in-person visits between
Logsdon and his children occur in accordance with Dr. Hoag’s
guidelines, the prison is unable to ensure that Logsdon’s visits
with his children will comply with the FPP. 	In addition,
defendants are concerned with entrusting the minors’ safety to
Logsdon’s adult relatives, given that they had previously
brought the children to visit Logsdon in contravention of the
then-existing sentencing order, and were unable to remove J.L.
from the venue when she became upset.
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
ensure compliance with the FPP, itself a court order ensuring
the protection of the children’s safety concerning contact with
Logsdon, the defendants’ 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.
7Two to three correctional officers supervise the visits of
up to fifty-three inmates who are permitted three adult visitors
in a visiting session. 	See Kipphut Decl. (Doc. No. 50-2) at ¶
20.
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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 . . . they need
only be available.” 	Overton, 539 U.S. at 135 (finding phone
calls sufficient substitutes to protect an inmate's First
Amendment right to visitation). 	The undisputed record reflects
that prison officials have not sought to prevent or restrict
Logsdon’s ability to correspond with his children in writing,
or to speak with them by telephone. 	Those means of associating
with his children remain available to him and are sufficient to
pass constitutional muster.
The third factor concerns 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 Dr. Hoag’s approval, would be able to ensure compliance
with the FPP. 	But, as previously noted, defendants have
expressed a legitimate concern with those adults’ ability to
satisfy the FPP. 	The court will not second-guess prison
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officials’ decision not to relinquish their interest in
ensuring the safety of children visiting the prison to third
parties. 	See Overton, 539 U.S. at 132 (noting that court must
give deference to prison administrators’ in defining and
accomplishing correction system’s goals).
Finally, 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 minimis
strain on the NHSP’s resources.
The undisputed record demonstrates that the restriction on
Logsdon’s ability to visit with his children was “reasonably
related to NHSP’s legitimate penological objectives,” i.e., the
concern with the safety of the children and compliance with the
FPP, rather than an “exaggerated response” to those concerns.
Id. 	Accordingly, the court concludes that, to the extent that
the restriction on Logsdon’s visits with his children impinges
on his First Amendment right to familial association, it does
not do so in an unconstitutional manner. 	The district judge,
therefore, should grant the defendants’ motion for summary
judgment as to Logsdon’s First Amendment claim.
II. 	Fourteenth Amendment Right to Due Process
Logsdon has also 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
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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. 	See Thompson, 490 U.S. at 460 (“The denial of
prison access to a particular visitor ‘is well within the terms
of confinement ordinarily contemplated by a prison sentence,’
and therefore is not independently protected by the Due Process
Clause.” (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)).
Accordingly, Logsdon cannot demonstrate that he was entitled to
procedural due process under the Fourteenth Amendment. 	The
district judge should, therefore, grant defendants’ motion for
summary judgment on this claim.
III. 	Laaman Consent Decree
In addition to his constitutional claims, Logsdon argues
that the decision to restrict his family’s visits violated a
consent decree issued in a class action case in 1978, Laaman v.
Helgemoe, Civ. No. 75-cv-258 (D.N.H.), which related to the
conditions of confinement at the New Hampshire State Prison.
But pursuant to a July 6, 2001, order approving a settlement
agreement and stipulation of dismissal in that matter, see id.
(ECF No. 523), jurisdiction to enforce the consent decree rests
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exclusively in the state courts of New Hampshire. 	Therefore, no
claim arising out of that consent decree may be asserted in this
action, and the district judge should grant summary judgment in
favor of the defendants with regard to Logsdon’s claim that the
defendants violated his rights under the Laaman Consent Decree.
IV. 	Denial of Used Book
In his complaint, Logsdon asserted a First Amendment claim
based on the NHSP’s refusal to allow him to acquire a particular
book on the basis that it was used, rather than new, in
violation of NHSP security regulations prohibiting inmates from
receiving used books. 	Having determined that he can acquire the
same book new, however, Logsdon has expressed his willingness to
drop this claim. 	See Pltff. Mem. (Doc. No. 56) at 8.
Accordingly, the district judge should dismiss Logsdon’s First
Amendment claim based on the denial of a book from this action,
and deny the defendants’ motion for summary judgment as moot.
Conclusion
For the foregoing reasons, the district judge should grant
defendants’ motion for summary judgment (Doc. No. 50) with
regard to Logsdon’s First and Fourteenth Amendment claims
concerning the denial of visitation, and his claim that such
denial violated the Laaman Consent Decree. 	Further, the
district judge should dismiss Logsdon’s First Amendment claim
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regarding the denial of a used book, and deny the defendants’
summary judgment motion as moot to the extent it concerns the
used book claim.
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
February 28, 2019
cc: 	Timothy A. Logsdon, pro se
Heather Dunion Neville, Esq.
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