Czekalski v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
JASON A. CZEKALSKI
v. 	Case No. 26-cv-258-SM-TSM
N.H. DEPARTMENT OF CORRECTIONS
COMMISSIONER WILLIAM HART ET AL.1
REPORT AND RECOMMENDATION
Before the court is New Hampshire Department of Corrections (“DOC”) prisoner Jason A.
Czekalski’s “Motion for Ex Parte Temporary Restraining Order and Preliminary Injunction
Regarding Defendants’ Legal Representation under NH RSA 99-D” (Doc. No. 4). 	Czekalski
claims that state law bars the New Hampshire Attorney General’s Office (“NHAG”) from
providing “free legal services to any named defendant save [DOC] Commissioner Hart.” 	Doc.
No. 4 at pg. 2. Czekalski seeks to enjoin the NHAG from representing Defendants in this case or
to compel the NHAG to pay for an attorney to represent Czekalski. Doc. No. 4 at pg. 2.
Czekalski’s motion regarding who may obtain representation at the NHAG’s expense has
been referred to the undersigned magistrate judge for a Report and Recommendation. See Apr. 6.
2026 Order (referral); see also Apr. 10, 2026 Order (denying request for temporary restraining
1 In addition to N.H. Department of Corrections (“DOC”) Commissioner William Hart, the
Complaint names the following current and former DOC officials and employees as Defendants:
(former) DOC Commissioner Helen Hanks; (former) Northern N.H. Correctional Facility (“NCF”)
Warden Corey Riendeau; N.H. State Prison (“NHSP”) Director of Security and Acting Warden
Maj. Stephaczek, whose first name is unknown (“FNU”); NHSP Administrator of Programs, Food
Services, Heather Cornack; NHSP Kitchen Supervisor Robert Heath; NCF Hearings Officer Joey
Pellitier; (former) DOC Director of Forensic Services Paula Mattis; NHSP Dinner Shift Chef,
whose first and last names are unknown (“FNU LNU”); NHSP Corrections Officer FNU Deering;
(former) DOC Director of Logistics Jonathan Hansen; DOC Director of Logistics Heidi Laramie;
DOC Director of Professional Standards and Training FNU LNU; NCF Administrator of
Programs, Food Services, Jeff Smith; NCF Kitchen Supervisor Paul Santos; NCF Chefs Michelle
Shea and Leonard Mitchell; DOC Dietician Timothy Popovich; and (former) NCF Director of
Security Scott Newton.
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order). 	Because RSA 99-D:2 authorizes the NHAG and not the court to determine whether to
represent Defendants; because no law requires the NHAG to provide Czekalski with counsel; and
because Czekalski fails to show that he is likely to suffer any irreparable harm, the district judge
should deny Czekalski’s motion (Doc. No. 4).
LEGAL STANDARDS
A plaintiff seeking preliminary injunctive relief 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, 576 U.S. 863, 876 (2015) (citation omitted). The burden of proof is on the movant. Esso
Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006). 	The likelihood of success and
irreparable harm are factors that weigh most heavily in the analysis. See Voice of the Arab World,
Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011).
BACKGROUND
The underlying Complaint in this action (Doc. No. 1) asserts that Defendants failed to
provide Czekalski with a diet conforming to his religious practices in violation of his federal rights,
and that they subjected him to adverse retaliatory or discriminatory acts, in violation of his rights
under the First and Fourteenth Amendments. 	Czekalski’s Complaint remains subject to this
court’s preliminary review under 28 U.S.C. § 1915A and LR 4.3(d), and no Defendant has
appeared in this case at this time.
Czekalski filed two motions seeking preliminary injunctions (Doc. Nos. 3, 4). This Report
and Recommendation concerns only the motion citing RSA 99-D (Doc. No. 4).
DISCUSSION
Czekalski argues that RSA 99-D does not allow the NHAG to represent all Defendants in
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this case because his claims, if successful, would yield findings of non-negligent, wanton, reckless,
deliberate indifference or intentionally tortious misconduct, violating his rights.
RSA 99-D:2 provides as follows, in pertinent part:
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 . . . .
RSA 99-D:2 (emphasis added).
Plaintiff presented the same arguments in support of a similar motion seeking to preclude
the NHAG from representing a different set of prison employees and officers in a state case he
filed, where he claimed that those defendants subjected him to false or retaliatory disciplinary
proceedings. 	See Czekalski v. Duchesne, No. 214-2022-CV-00087 (N.H. Super., Coos Cty.).
With respect to Czekalski’s RSA 99-D argument in that case, the Superior Court denied relief and
the New Hampshire Supreme Court affirmed, in a non-precedential, unpublished opinion,
reasoning that Czekalski lacked taxpayer standing to challenge the NHAG’s compliance with state
law in choosing to represent those defendants, and that Czekalski had otherwise failed to show that
he was entitled to the relief requested.2 	Czekalski v. Duchesne, No. 2023-0300, 2024 WL
2 Czekalski argues that this court should certify a question to the New Hampshire Supreme Court
to obtain an opinion regarding RSA 99-D. Certification may be appropriate “when the issue of
state law ‘may be determinative’ of the case, and if ‘it appears [that] . . . there is no controlling
precedent in the decisions of’ the New Hampshire Supreme Court.” Castagnaro v. Bank of N.Y.
Mellon, 772 F.3d 734, 736 (1st Cir. 2014) (citing N.H. Sup. Ct. R.34). The resolution of the RSA
99-D issue in Czekalski’s Rule 65 motion is not determinative of this case, and this court does not
need the guidance of an Opinion of the Justices where the proper construction of the state law at
issue is evident from persuasive authority and a plain reading of its terms.
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2958420, at *2, 2024 N.H. LEXIS 128, at *6 (N.H. May 1, 2024).
Assuming, without deciding, that Czekalski’s RSA 99-D argument here is not only ripe
(absent any Defendant’s appearance) but also not merely a generalized grievance, such that he
might have standing at this time to present his claims regarding RSA 99-D,3 this court would still
properly deny his motion. The plain language of RSA 99-D:2 “specifies that it is the [NHAG],
rather than the Court, which determines whether a state employee[’s] alleged conduct underlying
a lawsuit was ‘wanton or reckless’ for the purpose of determining whether representation under
RSA 99-D:2 is appropriate.” Stow v. Hanks, No. 23-CV-455-SM-TSM, 2023 WL 9058591, at *3,
2023 U.S. Dist. LEXIS 231594, at *7 (D.N.H. Dec. 7, 2023), R&R adopted, 2024 WL 21648, 2024
U.S. Dist. LEXIS 25 (D.N.H. Jan. 2, 2024). Nothing in RSA 99-D suggests that Plaintiff’s theory
of the case or Plaintiff’s allegations in his Complaint should govern the availability of NHAG
representation of state employees in civil litigation. 	Plaintiff thus fails to demonstrate any
likelihood of success on the merits of the claims at issue in his motion for a preliminary injunction.
Plaintiff’s alternate request, seeking to compel the NHAG to pay the fees of counsel to
represent Czekalski, is similarly unsupported. Civil litigants generally have no right to counsel.
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). No statute or other law authorizes this court
to make the State responsible for finding and paying for an attorney to represent Plaintiff now.
Czekalski can continue to litigate this case pro se, or he may engage counsel to appear on
his behalf. He may move this court for an appointment of counsel in this case, and that motion
may be granted, if there are “exceptional circumstances” in this case, not presently apparent, “such
3 But see Schneider v. Cty. of Will, 123 F. App’x 715, 717 (7th Cir. 2005) (plaintiffs’ “lack of any
injury personal to them is fatal to their standing” to seek disqualification of defendants’ counsel
on their claim that County officials failed to follow state law in obtaining private counsel);
O’Connor v. Jones, 946 F.2d 1395, 1399-1400 (8th Cir. 1991) (no standing for prisoner seeking
to disqualify private law firms hired as special assistant attorneys general).
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that a denial of counsel [would be] likely to result in fundamental unfairness impinging on his due
process rights.” DesRosiers, 949 F.2d at 23. And if counsel appears for Plaintiff, and he ultimately
prevails, a portion of his attorney’s fees might be shifted at the end of this case, see 42 U.S.C.
§ 1997e(d). 	But nothing in the record now supports a finding of irreparable harm or injury to
Czekalski if this court declines to grant his Rule 65 motion. Accordingly, the district judge should
deny Czekalski’s motion for a preliminary injunction (Doc. No. 4).
CONCLUSION
For the foregoing reasons, the district judge should deny the relief requested in Czekalski’s
motion for a preliminary injunction (Doc. No. 4). 	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).
_______________________________
Talesha L. Saint-Marc
United States Magistrate Judge
May 6, 2026
cc: 	Jason A. Czekalski, pro se
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