Frene v. Merrimack County Department of Corrections

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Frene
v. Civil No. 17-cv-215-JL
Merrimack County Department
of Corrections et al.1
REPORT AND RECOMMENDATION
Before the court is Robert Frene’s initial filing in this
matter (Doc. No. 1), which the court construed as a petition for
a writ of habeas corpus arising under 28 U.S.C. § 2241, and two
petition addenda (Doc. Nos. 3, 6). The petition is before this
court for preliminary review, to determine whether it is
facially valid and may proceed. See 28 U.S.C. § 2243; LR
4.3(d)(4)(A); Rule 4 of the Rules Governing Section 2254 Cases
(“§ 2254 Rules”); see also § 2254 Rule 1(b) (§ 2254 Rules may
apply to § 2241 petitions). Also before the court is Frene’s
motion to proceed in this matter without prepayment of the
filing fee (Doc. No. 4).
1In his pleadings (Doc. Nos. 1, 3) Frene names the Merrimack
County Department of Corrections, Belknap County, and the
Grafton County House of Corrections as respondents to this
action.
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Standard
In undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition contains sufficient factual matter,
accepted as true, to state a facially valid claim to relief that
is cognizable in a federal habeas action. See McFarland v.
Scott, 512 U.S. 849, 856 (1994). When a habeas petitioner is
proceeding pro se, the assertions contained in the petition are
construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
Discussion
Frene initially filed this action when he was incarcerated
at the Merrimack County Department of Corrections (“MCDOC”),
seeking immediate release from custody. Frene alleged that his
incarceration at the MCDOC violated his federal constitutional
rights to travel and to reasonable bail. Frene has now also
asserted that, during his incarceration at the MCDOC, the
Belknap County Department of Corrections (“BCDOC”) and the
Grafton County Department of Corrections (“GCDOC”), he was
subjected to unconstitutional conditions of confinement.
In his petition addenda (Doc. Nos. 3, 6), Frene added
claims for monetary damages. As such claims are not cognizable
in a habeas action, they should be dismissed without prejudice
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to Frene’s ability to assert those claims in a civil action.
Frene is no longer incarcerated at the MCDOC, BCDOC, or
GCDOC. Accordingly, to the extent Frene asserts claims seeking
release from confinement at the MCDOC, BCDOC, or GCDOC, his
petition is moot, and should be dismissed on that basis.
Motion to Proceed Without Prepayment of Filing Fee (Doc. No. 4)
Frene has filed a motion (Doc. No. 4) seeking to proceed in
this matter without prepayment of the filing fee. Because the
court recommends that this matter be dismissed, the district
judge should deny that motion as moot.
Conclusion
For the foregoing reasons, the court recommends that the
district judge: 1) dismiss this action in its entirety, without
prejudice to Frene’s ability to assert his civil claims for
relief in a civil rights action filed under 42 U.S.C. § 1983,
naming appropriate defendants; and 2) deny Frene’s motion to
proceed without prepayment of fees (Doc. No. 4) as moot. 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
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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 31, 2017
cc: Robert Frene, pro se
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