Stow v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Weston J. Stow
v. 	Case No. 23-cv-455-SM-TSM
Helen Hanks et al.
REPORT AND RECOMMENDATION
Plaintiff, Weston J. Stow, has filed a “Motion for Injunctive Relief Order and for a
Hearing” (Doc. No. 7), which has been referred to the undersigned Magistrate Judge for a
recommendation as to disposition. 	For the reasons explained herein, the District Judge should
deny the motion without prejudice.
Background
In his complaint in this action, Mr. Stow asserted claims alleging violations of his Eighth
Amendment rights and his rights under state law, arising from the defendants’ alleged failure to
protect him from harm. Specifically, Mr. Stow alleged that the defendants acted with deliberate
indifference to a significant risk that he would suffer serious harm when, in December 2020, they
placed him, or caused him to be placed, in a housing situation with dangerous prisoners, despite
knowing that the placement would create a significant risk of serious harm to Mr. Stow. 	The
complaint is pending preliminary review under 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).
Liberally construed, the instant motion for injunctive relief seeks first that the defendants,
all of whom are state employees, be precluded from receiving free legal representation from the
Office of the Attorney General (“AGO”), as such representation would constitute a “reward” for
the defendants’ bad behavior. 	Mr. Stow next asks the Court to hold a hearing, without first
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providing notice of the hearing to the defendants, to allow him “to appear in court personally to
present his side of the argument,” Doc. No. 7, at 8, and then find that the defendants are not entitled
to qualified immunity under state or federal law, sovereign immunity, or any other type of
immunity, in this action. Finally, Mr. Stow asks the Court to excuse him from posting security
under Rule 65(c) of the Federal Rules of Civil Procedure.
Discussion
I. 	Requests for Court Rulings
A. 	Request for a Hearing Without Notice to the Defendants
“[I]n our judicial system adversary proceedings are the norm and ex parte proceedings the
exception . . . .” Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991).
The Court can only issue an order for a temporary restraining order or preliminary injunctive relief,
without notice to the defendants, if: (1) the movant specifies, in an affidavit or verified complaint,
that “immediate and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition,” and the movant “certifies in writing any efforts made to give
notice and the reasons why it should not be required.” 	Fed. R. Civ. P. 65(b)(1). 	“‘[T]he
requirements of Rule 65(b)(1) are not mere technicalities but establish minimum due process.
Thus, [t]o obtain ex parte relief, a party must strictly comply with those requirements.’” Strahan
v. O'Reilly, No. 22-cv-52-LM, 2022 U.S. Dist. LEXIS 46059, at *3, 2022 WL 788623, at *1
(D.N.H. Feb. 16, 2022) (citations omitted), R&R adopted, 2022 U.S. Dist. LEXIS 45955, 2022
WL 788258 (D.N.H. Mar. 14, 2022).
While Mr. Stow has generally asserted that he will be irreparably harmed without a pre-
notice hearing, he has not explained how providing notice of the hearing to the defendants would
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harm him. Nor has he offered any other explanation as to why notice to the defendants should not
be required. Accordingly, the District Judge should deny Mr. Stow’s request for a hearing to be
held without notice to the defendants, as Mr. Stow failed to satisfy the requirements of Rule
65(b)(1).
B. 	Request for a Ruling on Immunity Defenses
The complaint in this case is pending the Court’s preliminary review, and therefore, it has
not been served on the defendants, and no immunity defenses have been asserted at this time. The
Court is not inclined to provide an advisory opinion on the applicability of a defense that may or
may not be raised in this case. The District Judge should therefore deny Mr. Stow’s request for a
ruling that the defendants are not entitled to assert any sort of immunity defense, without prejudice
to Mr. Stow’s ability to assert his arguments in opposition to any asserted immunity defense at a
later stage of this case, as appropriate.
II. 	Request for a Preliminary Injunction Preventing Representation by the Attorney General
and Indemnification
A. Preliminary Injunction Standard
Preliminary injunction is an “‘extraordinary form of relief’” which “may be granted only
upon a showing that the plaintiff ‘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.’” Brox v. Woods Hole, Martha’s Vineyard &
Nantucket S.S. Auth., 83 F.4th 87, 91 (1st Cir. 2023) (quoting Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008)). “[T]he first two factors, likelihood of success and irreparable harm,
[are] ‘the most important’ in the calculus,” and “the second factor, irreparable harm, is an
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‘essential prerequisite for equitable relief.’” Strahan v. McNamara, 642 F. Supp. 3d 204, 207
(D.N.H. 2022). The burden of demonstrating that a denial of interim relief is likely to cause
irreparable harm rests squarely upon the movant. See Charlesbank Equity Fund II v. Blinds To
Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004).
B. Analysis
In his motion, Mr. Stow asks the Court not to serve the defendants through the AGO, not
to allow the AGO to provide free representation to the defendants, and not to allow the state to
indemnify the defendants to the extent damages are won against them. As explained below, the
District Judge should deny Mr. Stow’s requests for preliminary injunctive relief because he failed
to demonstrate that he will suffer irreparable harm if the Court does not issue the requested
injunctions.
1. 	Indemnification
As to indemnification, Mr. Stow failed to demonstrate that he would be irreparably harmed
without an order from this Court preventing the state from indemnifying the defendants. Mr. Stow
contends that it would be “unequitable to allow listed defendants to partake of the NH General
Fund (the public trough) i.e. taxpayer dollars” to pay damages to him in this case. 	He has not
alleged any facts which show that the Court’s failure to enjoin the state from indemnifying the
defendants would cause him any harm. 	Additionally, Mr. Stow has not demonstrated that his
objection to indemnification, to the extent it could be cognizable, must be resolved at this stage of
the case.
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2. 	AGO Representation
As to the AGO’s representation of state-employed defendants in this case, Mr. Stow argues
that because he alleged that the defendants’ conduct underlying the claims in this lawsuit was
“wanton” and “reckless,” the AGO is prohibited from representing the defendants in this case,
under N.H. Rev. Stat. Ann. § (“RSA”) 99-D:2. That statute provides, in relevant part, that:
If any claim is made or any civil action is commenced against a present or former
officer, trustee, official, or employee of the state or any agency thereof, . . . seeking
equitable relief or claiming damages for the negligent or wrongful acts and the
officer, trustee, official, or employee requests the state to provide representation for
him or her, and the attorney general . . . determines that the acts complained of were
committed by the officer, trustee, official, or employee while acting within the
scope of official duty for the state and that such acts were not wanton or reckless,
the attorney general shall represent and defend such person with respect to such
claim or throughout such action, or shall retain outside counsel to represent or
defend such person, and the state shall defray all costs of such representation or
defense, to be paid from funds not otherwise appropriated. In such case the state
shall also protect, indemnify, and hold harmless such person from any costs,
damages, awards, judgments, or settlements arising from the claim or suit.
Id. RSA 99-D:2 specifies that it is the AGO, rather than the Court, which determines whether a
state employees’ alleged conduct underlying a lawsuit was “wanton or reckless” for the purpose
of determining whether representation under RSA 99-D:2 is appropriate. Further, Mr. Stow failed
to 	demonstrate 	how 	he 	would 	be 	irreparably 	harmed 	unless 	the 	court 	prevented 	such
representation.
Conclusion
For the foregoing reasons, the District Court should deny Mr. Stow’s request for a
preliminary injunction (Doc. No. 7). 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
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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).
__________________________
Talesha L. Saint-Marc
United States Magistrate Judge
December 7, 2023
cc: 	Weston J. Stow, pro se
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