Griffin v. NH Department of Corrections

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John R. Griffin, Jr.
v. 	Civil No. 17-cv-161-LM
N.H. Department of Corrections
Commissioner William L. Wrenn and
N.H. State Prison Warden Michael Zenk1
REPORT AND RECOMMENDATION
Before the court for preliminary review, pursuant to 28
U.S.C. § 1915(e)(2), 28 U.S.C. § 1915A, and LR 4.3(d)(1), is
plaintiff John R. Griffin, Jr.’s Amended Complaint (Doc. No.
10), filed in response to this court’s October 4, 2017 Order
(Doc. No. 9), and additional documents that supplement Griffin’s
claims and allegations, which the court has deemed to be addenda
to the Amended Complaint. 	See Doc. Nos. 13, 14. 	Also before
the court, and referred here for a Report and Recommendation, is
Griffin’s Motion for Injunctive Relief (Doc. No. 14).
Background
In June 2016, Griffin’s parole was revoked by the New
Hampshire Adult Parole Board (“APB”). 	Griffin was incarcerated
1The Amended Complaint (Doc. No. 10) substitutes (former)
New Hampshire Department of Corrections (“DOC”) Commissioner
William L. Wrenn and New Hampshire State Prison (“NHSP”) Warden
Michael Zenk for the state defendant originally named by
Griffin.
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at the New Hampshire State Prison (“NHSP”) pursuant to that
parole revocation. 	In a subsequent hearing on November 15,
2016, the APB reparoled Griffin and conditioned his release upon
his having an approved housing plan. 	See Nov. 15, 2016 APB
Results of Parole Hr’g (Doc. No. 1-2, at 1, 2); Mar. 3, 2017 St.
Germain Resp. (Doc. No. 1-2, at 23).
On a number of occasions after November 15, 2016, Griffin
requested that prison officials allow him to move to a
Transitional Housing Unit (“THU”) as a means of satisfying the
“approved housing” requirement.2 	DOC Community Corrections
Deputy Director Duffy responded that Griffin was wait-listed for
parole to a THU, that such parole requests were reviewed
frequently, and that Griffin or his case manager would be
contacted if the request were granted. 	See Apr. 3, 2017 Duffy
Resp. (Doc. No. 1-2, at 11). 	When Griffin inquired whether he
could be re-classified to a lower custody level, in order to
become eligible for transitional housing or a work-release
placement through the classification process, his NHSP case
manager and DOC Classifications Administrator Kim Lacasse
2The New Hampshire Department of Corrections operates “three
Transitional Housing Units, formerly called halfway houses, and
one Transitional Work Center.” 	N.H. Dep’t of Corr., Div. Cmty.
Corr., https://www.nh.gov/nhdoc/divisions/community/index.html
(last accessed Mar. 29, 2018).
2
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replied that Griffin’s status as a parole violator made him
ineligible to be re-classified below C-3 (medium custody). 	See
Mar. 9, 2017 Mackey Resp. (Doc. No. 1-2, at 5); Mar. 27, 2017
Lacasse Resp. (Doc. No. 1-2, at 9). 	Christopher Kench denied
Griffin’s grievance of that on the Commissioner’s behalf. 	See
Apr. 6, 2017 Dep’t of Corr. Comm’r Resp. (Doc. No. 1-2, at 3).
In late 2017, Griffin obtained a placement in a THU and was
paroled to that facility. 	See Dec. 21, 2017 Notice of Change of
Address (Doc. No. 12). 	Griffin remained there for less than a
month. 	In December 2017/January 2018 he was charged with
walking away from transitional housing without permission, and
sent back to the NHSP. 	See Jan. 2, 2018 MacKay Resp. (Doc. No.
13, at 6); see also Jan. 3, 2018 Griffin Inmate Request Slip
(Doc. No. 14, at 5). 	Griffin’s legal files and prescription
sunglasses did not accompany him to the NHSP. 	See Dec. 26, 2017
Williams Resp. (Doc. No. 13, at 4).
Griffin asserts that in December 2017, an inmate in the
NHSP Reception and Diagnostics Unit (“R&D”) threatened him, and
another inmate in the Transitional Work Center attacked him.
See Doc. No. 14, at 1. 	Griffin was placed in protective custody
after those incidents occurred. 	Griffin asserts he could
neither access the prison law library nor make copies of
documents to file in court while he was in protective custody.
3
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See Doc. No. 14, at 1; Doc. No. 14-1, at 1; Doc. No. 13-1, at 1.
At some point, prison officials transferred Griffin to the
Northern New Hampshire Correctional Facility (“NCF”), where he
remains.3
Claims
Griffin asserts the following claims under 42 U.S.C. § 1983
in his recent filings (Doc. Nos. 10, 13, 14):
1. 	Defendants’ failure to find housing for Griffin after
November 15, 2016, in satisfaction of the “approved
housing” requirement, violated Griffin’s Eighth Amendment
right not to be subjected to cruel and unusual punishment,
and render the defendants liable to Griffin under state
tort law.
2. 	Defendants’ failure to waive the “approved housing”
requirement subjected Griffin to an impossible parole
condition and indefinite imprisonment, depriving him of a
liberty interest in parole without due process, in
violation of his Fourteenth Amendment rights, and render
the defendants liable to Griffin under state tort law.
3. 	Defendants treated Griffin in a manner that differed
from the treatment of other inmates, without a reasonable
basis for the differential treatment, in violation of
Griffin’s Fourteenth Amendment right to equal protection,
in that:
(a) 	As a parole violator, Griffin was ineligible for
classification at a level below C-3 (medium custody),
and inmates who were not parole violators were
eligible for such classification;
(b) 	As a parole violator, Griffin was not allowed to
have a prison job, and inmates who were not parole
3See N.H. Dep’t of Corr. Inmate Locator,
http://business.nh.gov/Inmate_locator/ 	(last accessed Mar. 29,
2018).
4
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violators were allowed a prison job; and
(c) 	Unlike Griffin, who was not reincarcerated for a
drug violation, parole violators reincarcerated for
drug violations have access to outpatient or inpatient
drug treatment facilities in the community,
facilitating their satisfaction of the “approved
housing” requirement of their parole.
4. 	Defendants deprived Griffin of his First and
Fourteenth Amendment right of access to the courts when
Griffin was in protective custody.
5. 	Defendants delayed Griffin’s receipt of legal
paperwork and did not give him prescription sunglasses, in
violation of his rights to due process under the Fourteenth
Amendment and, as to the sunglasses, as to his rights under
the Eighth Amendment.
6. 	Defendants withheld his grievances from DOC
Commissioner Helen Hanks’s consideration, to retaliate
against Griffin for exercising his First Amendment rights
in litigating civil cases against them.
7. 	Defendants failed to protect Griffin from the threat
of inmate violence, in that an inmate attacked Griffin, and
an inmate threated Griffin, before he was placed in
protective custody.
Griffin seeks damages and injunctive relief.
Discussion
I. 	Preliminary Review4
A. 	Federal Claim 1
In Claim 1, Griffin asserts that defendants’ failure to
find him housing after November 15, 2016 violated his Eighth
4The court in conducting a preliminary review of Document
Nos. 10, 13, and 14, applies the preliminary review standard set
forth in the October 4, 2017 Order (Doc. No. 9).
5
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Amendment right to avoid cruel and unusual punishment. 	Griffin,
from November 15, 2016 until his transfer to transitional
housing in December 2016, remained incarcerated at the NHSP,
because the “approved housing” condition on his release on
parole had not been satisfied.
A convicted person serving a valid sentence of
incarceration has no federal constitutional right to 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, 442 U.S. 1, 7 (1979)). 	In
general, “[c]onfinement in any of the State’s institutions is
within the normal limits or range of custody which the
conviction has authorized the State to impose.” 	Meachum v.
Fano, 427 U.S. 215, 225 (1976).
Griffin is serving a valid sentence within the state
correctional system. 	Griffin has not alleged facts to show that
his continued confinement at the NHSP between November 15, 2016
and December 2016, per se, amounted to cruel and unusual
punishment. 	Griffin has also failed to allege facts showing
that the conditions of his confinement during that period failed
to meet the “‘minimal civilized measure of life’s necessities.’”
Brown v. Plata, 131 S. Ct. 1910, 1959 (2011) (Eighth Amendment
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“prohibits prison officials from depriving inmates of ‘the
minimal civilized measure of life’s necessities’” (citation
omitted). 	Additionally, Griffin has not alleged facts showing
that any defendant was deliberately indifferent to any
substantial risk of serious harm to Griffin during that time
period. 	See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Accordingly, the district judge should dismiss Claim 1.
B. 	Federal Claim 2
Griffin asserts that his Fourteenth Amendment due process
rights were violated by defendants’ failure to waive the
“approved housing” requirement and release him after November
15, 2016, given his indigence and the paucity of approvable,
affordable housing in the state. 	Griffin asserts that the
“approved housing” requirement was essentially an impossible
parole condition, which, under the circumstances, violated his
right to due process to the extent it precluded his release.
A precondition to asserting a viable due process claim
challenging continued confinement is that prison officials
deprived the inmate of a protected interest in liberty. 	See
Mathews v. Eldridge, 424 U.S. 319, 332 (1976); González-Fuentes,
607 F.3d at 880 & n.13. 	Griffin asserts here that he had a
liberty interest in being released on parole during the relevant
time period. 	Griffin, however, previously suffered the
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dismissal of a due process claim resting on the same
underpinning. 	See Griffin v. N.H. Dep’t of Corr., No. 17-cv-
194-PB (D.N.H.) (“Case No. 194”) 2017 DNH 200, 2017 U.S. Dist.
LEXIS 154995, at *6-*8, 2017 WL 4404400, at *3 (D.N.H. Sept. 21,
2017) (ECF No. 10) (recommending dismissal of due process claim
because Griffin lacked a protected liberty interest in being
released on parole (citing cases including )), approved by 2017
U.S. Dist. LEXIS 161847, 2017 WL 4402395 (D.N.H. Oct. 1, 2017)
(ECF No. 12). 	Judgment entered in that case, and Griffin did
not file an appeal. 	Griffin cannot succeed here in arguing that
he had a protected liberty interest in being released on parole
on November 15, 2016, in light of the result and reasoning in
Case No. 194.
Further, Griffin has failed to show that any defendant
violated his right to substantive due process. 	To do so, “the
plaintiff must meet . . . ‘[an] onerous requirement’ to prove a
substantive due process violation: ‘the state actions must shock
the conscience of the court.’” 	Irish v. Maine, 849 F.3d 521,
526 (1st Cir. 2017) (citation omitted). 	“To meet this standard,
the state actions must be ‘so egregious, so outrageous, that it
may fairly be said to shock the contemporary conscience.’” 	Id.
(quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8
(1998)).
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Griffin argues that it was fundamentally unfair for
defendants to keep him incarcerated based on an “approved
housing” condition he asserts he could not meet, in part because
he was indigent. 	Assuming, without deciding, that any defendant
here had the discretion to waive a condition on Griffin’s
release imposed by the APB, a decision not to exercise such
discretion would not shock the conscience, as the condition at
issue was both reasonable and consistent with the APB’s
authority. 	See N.H. Admin. R., Par 301.03(b)(2) (APB “shall
consider” residence, neighborhood, and community in which inmate
intends to live, in determining whether to release inmate on
parole). 	Moreover, documents attached to Griffin’s pleadings,
showing that he was waitlisted for and ultimately placed in a
THU, belie his claim that the “approved housing” requirement was
impossible to satisfy.
Griffin points out that there are few affordable housing
options in New Hampshire for indigent parolees, and that his
ineligibility for a prison job and low state pay made it
essentially impossible for him to save money for housing.
Whatever merits such policy arguments might have for corrections
officials and lawmakers contemplating the reintegration of
offenders into the community, they do not alter this court’s
decision regarding whether Griffin has stated a viable due
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process claim.5 	Griffin has failed to plead a cognizable due
process claim arising from the maintenance of an “approved
housing” requirement on Griffin’s parole, and the district judge
should dismiss Claim 2.
C. 	State Law Claims (Claims 1 and 2)
Griffin asserts tort claims in this action relating to the
claims identified in this Report and Recommendation as Claims 1-
2. 	Because the court finds that Griffin has failed to state a
federal claim upon which relief might be granted as to Claims 1-
2, the district judge should decline to exercise its
supplemental jurisdiction, see 28 U.S.C. § 1367(c), and should
dismiss those state law claims without prejudice to Griffin’s
ability to refile such claims in state court.
D. 	Claim 3
In Claims 3(a)-3(c), Griffin asserts that defendants
violated his right to equal protection by treating him
differently than other, similarly situated, inmates at the NHSP.
To establish an equal protection claim, a plaintiff needs to
allege facts showing that “‘(1) the [plaintiff], compared with
5Griffin argues that it was irrational for the state to pay
for his continued incarceration, where it would have been less
expensive to loan him money to pay for an apartment, and that
his community housing options became more limited when prison
officials deemed a number of specific rooming houses and
apartments unsuitable for inclusion in approvable housing plans.
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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’” the plaintiff. 	Davis v. Coakley,
802 F.3d 128, 132-33 (1st Cir. 2015) (citations omitted).
Griffin claims that his status as a parole violator, the
fact that his parole violation did not involve drug use, and the
fact that he was indigent, were the reasons he was treated
differently by prison officials. 	None of those groups comprises
a suspect class entitled to heightened scrutiny. 	See Harris v.
McRae, 448 U.S. 297, 323 (1980) (“poverty, standing alone” is
not a suspect class); White v. Dir., Va. Dep’t of Corr., 105 F.
Supp. 2d 515, 517, 523 (W.D. Va. 2000) (parole violators are not
suspect class). 	The court therefore looks to whether “‘there is
a rational relationship between the disparity of treatment and
some legitimate governmental purpose.’” 	Bd. of Trs. of Univ. of
Ala. v. Garrett, 531 U.S. 356, 366-67 (2001) (citations
omitted).
1. 	Classification and Prison Job (Claims 3(a), 3(b))
Griffin claims that DOC has violated his equal protection
rights by prohibiting him from being classified at a custody
level lower than C-3 (medium custody), and for eligibility for a
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prison job, because he was a parole violator. 	Parole violators’
history of violating conditions of release imposed upon them is
a rational basis for treating them, as a class, differently from
other inmates in making custody decisions and allocating prison
jobs. 	Because there is a rational basis for treating the class
of parole violators and other inmates differently in those
respects, Griffin has failed to state an equal protection claim
upon which relief can be granted as to his alleged ineligibility
for prison jobs and re-classification, and the district judge
should dismiss Claims 3(a) and 3(b).
Additionally, as to Claim 3(b), Griffin has failed to
allege any facts showing that either of the named defendants,
Warden Zenk or Commissioner Wrenn, through their own acts or
omissions, caused Griffin to be denied any prison job while he
was incarcerated as a parole violator.6 	Accordingly, Claim 3(b)
is subject to dismissal on that basis.
2. 	Housing Options for Drug Users (Claim 3(c))
Griffin argues that if his parole violation had involved
drug use, he would have had access to housing options that are
reserved for parole violators with a history of drug violations.
6The court previously granted Griffin an opportunity to file
an amended complaint to allege what each individual defendant
did or did not do that violated Griffin’s rights.
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There is a rational basis for assigning a higher priority for
such housing options with access to treatment services to
parolees with a demonstrated need for community-based drug
treatment. 	Accordingly, Griffin has failed to state an equal
protection claim upon which relief can be granted, with respect
to Claim 3(c).
E. 	Claim 4
Griffin has asserted that while in protective custody at
the NHSP, beginning in December 2017/January 2018, he could
neither access the prison law library, nor make copies for
filing in court. 	Additionally, he alleges that his legal files
did not accompany him when he was transferred from a THU to R&D.
In the absence of allegations regarding any actual injury
suffered by Griffin in his pending or planned litigation, the
allegations regarding Griffin’s lack of access to a law library
and his missing legal materials do not state a claim of a denial
of his right of access to the courts. 	Cf. Lewis v. Casey, 518
U.S. 343, 352, 354-56 (1996). 	The district judge should dismiss
Griffin’s denial of access to the courts claim.
F. 	Claim 5
Griffin has asserted that neither his prescription
sunglasses (which he asserts he needs to differentiate people at
a distance of 120 feet), nor his legal paperwork, accompanied
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him when he was transferred to R&D. 	Griffin cannot maintain
federal due process claims regarding the loss of those items, as
post-deprivation remedies are available to redress the loss.
Cf. Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n
unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss is
available.”). 	Moreover, as to the prescription sunglasses,
Griffin has filed an exhibit as part of his complaint addendum,
see Dec. 26, 2017 Williams Resp. (Doc. No. 13, at 4), stating
that Sgt. Williams, the officer to whom Griffin complained, had
reviewed Griffin’s medical records and could not find a
reference to a special need for the sunglasses at issue.
Therefore, Griffin has not pleaded any facts that demonstrate
that any officer or defendant in this case took action relating
to Griffin’s prescription sunglasses with deliberate
indifference to a substantial risk of serious harm to Griffin.
The district judge should dismiss Griffin’s lost property due
process and Eighth Amendment claims, relating to the legal
paperwork and Griffin’s sunglasses.
G. 	Claim 6
Griffin asserts that he believes his grievances to current
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DOC Commissioner Helen Hanks “are being withheld from her
consideration, to further marginalize and oppress me” in
retaliation for his civil actions against prison officials.
Doc. No. 13, at 1. 	The allegations regarding retaliation are
entirely speculative and conclusory, and Claim 6 should be
dismissed on that basis. 	See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
H. 	Claim 7
Construing his allegations liberally, Griffin asserts that
prison officials failed to protect him from the threat of inmate
violence at the Transitional Work Center in December 2017 and in
R&D, after his transfer there from the THU. 	Griffin’s federal
claims of endangerment relating to inmate violence do not belong
in this case, as they do not arise from the same case or
controversy as the claims asserted either in the original
complaint, or in the Amended Complaint (Doc. No. 10) in this
matter. 	The district judge, therefore, should dismiss those
claims without prejudice to Griffin’s ability to file them in a
new case. 	Cf. George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007) (“[u]nrelated claims against different defendants belong
in different suits . . . to ensure that prisoners pay the
required filing fees” under the Prison Litigation Reform Act).
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II. 	Motion for Injunctive Relief (Doc. No. 14)
Construed liberally, Document No. 14 seeks preliminary
injunctions and other non-monetary relief in this case,
including an order of release, an order directing that Griffin
receive a loan of state funds to pay for approved housing, and
an order advising Attorney Chuck Douglas of Griffin’s claimed
exposure to inmate violence. 	To obtain such relief, Griffin
must “‘establish that he is likely to succeed on the merits,
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); see also Voice of the Arab World, Inc. v. MDTV Med.
News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011).
As to Griffin’s request that the court issue an Order to
provide Attorney Chuck Douglas with information, Griffin has not
demonstrated any substantial impediment to being able to contact
that lawyer on his own. 	Accordingly, Griffin cannot demonstrate
that, without a court order, he would be irreparably harmed, and
the district judge should deny Griffin’s request concerning
Attorney Douglas.
As to Griffin’s requests for release and a loan, Griffin
has not demonstrated a likelihood of success in this case on the
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merits as to the claims underlying those requests. 	The district
judge should therefore deny these requests.
As to the threat of inmate violence, the court notes that
Griffin alleges he was placed in protective custody at the NHSP.
Further, it appears Griffin is presently housed at NCF. 	Nothing
before this court suggests that injunctive relief is necessary
to ensure that Griffin is not subjected to irreparable harm,
based on incidents relating to inmate violence that are alleged
to have occurred while he was in Concord at the NHSP.
Accordingly, the district judge should deny all of his requests
for injunctive relief.
Conclusion
For the foregoing reasons, the district judge should
dismiss all claims asserted in Document Nos. 10, 13, and 14.
Griffin’s claims of tortious conduct under state law should be
dismissed without prejudice to Griffin’s ability to refile his
state law claims in state court. 	Griffin’s claims of Eighth
Amendment violations relating to incidents involving inmate
violence or threats (Claim 7) should be dismissed without
prejudice to his ability to refile such claims in a new lawsuit.
Griffin’s motion for injunctive relief (Doc. No. 14) should be
denied, and the case should be closed.
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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 objections 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
April 3, 2018
cc: 	John R. Griffin, Jr., pro se
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