Cullen v. NH Department of Corrections, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Allan Cullen, Ronald Bourdon,
and Scott Rogers1
v. Civil No. 16-cv-537-SM
New Hampshire Department of Corrections
Commissioner William Wrenn
REPORT AND RECOMMENDATION
Allan Cullen, a prisoner at the Northern New Hampshire
Correctional Facility (“NCF”), filed this lawsuit pursuant to 42
U.S.C. § 1983, to challenge a prison directive that Cullen
combine all of his legal materials in his cell into one “legal
tote.” The court, in its January 3, 2017 Order (Doc. No. 5)
granted plaintiff leave to file an amended complaint stating a
claim, regarding the impact of the challenged policy on him.
Addressed in this Order is plaintiff Allan Cullen’s
response (Doc. No. 12) to the January 5 Order, which this court
construes to be an addendum to the complaint (Doc. No. 1). The
complaint and addendum (Doc. Nos. 1, 12) are before the court
for preliminary review, pursuant to LR 4.3(d)(1), and 28 U.S.C.
1The original complaint named Bourdon, Cullen, and Rogers as
plaintiffs. The Report and Recommendation Regarding Co-
Plaintiffs, issued in May 2017, recommends that plaintiffs
Rogers and Bourdon be dropped as parties.
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§§ 1915(e)(2) and 1915A. The standard employed in conducting
this preliminary review is set forth in the January 3, 2017
Order.
Background
Cullen is an NCF inmate who had legal materials in his cell
in late 2016 that exceeded the capacity of a single “legal
tote.” He purchased a second tote for storing his legal
materials in October 2016, which he alleges would have fit
neatly in his cell, stacked on top of the first tote, but prison
officials did not deliver the second tote to him. The original
complaint (Doc. No. 1) stated that NCF Corrections Officer
Burdick, on December 5, 2016, told Cullen that, per order of the
Department of Corrections (“DOC”) Commissioner, all of the legal
materials in Cullen’s cell needed to be put in one legal tote,
and that Cullen had one week to do so. In response to an inmate
request slip, NCF Lt. McFarland told Cullen that NCF did not
allow Cullen to have more than one legal tote in his cell
because of lack of space in the cell.
Construed liberally, the addendum (Doc. No. 12) adds that
prison officials, applying the one-tote policy to Cullen, caused
Cullen to lose legal research materials he had, that exceeded
the capacity of one tote, which he asserts he needed to pursue
claims challenging his conviction and sentence. Cullen states
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that he is trying to replace those lost research materials,
which he describes as a process that is both time-consuming and
costly. Cullen further claims that some of the legal materials
that were taken from him as a result of the one tote policy are
no longer available in the prison law library. Specifically,
Cullen asserts that he is currently researching and/or
litigating claims of ineffective assistance of his state court
trial, appellate, sentencing, and post-conviction counsel, as
well as a challenge to the legality of the sentence imposed by
the Sentence Review Division.
Cullen asserts the following claims in the complaint (Doc.
No. 1) and complaint addendum (Doc. No. 12):
1. Defendant’s application of the one-tote policy at NCF
violates Cullen’s Fourteenth Amendment right to equal
protection, in that:
a. The policy has been applied to inmates at NCF but
has not been applied at the New Hampshire State Prison
(“NHSP”); and
b. Exceptions to the one-tote policy have been made
to allow similarly-situated inmates at NHSP to have
access to their excess legal materials, but no
exception to the policy has been offered to preserve
Cullen’s access to his excess materials.
2. Defendant’s application of the one tote policy at NCF
violates Cullen’s First and Fourteenth Amendment right of
access to the courts, as that policy has resulted in the
loss of legal research materials he needs to litigate
claims challenging his conviction and sentence.
Cullen seeks injunctive relief, specifically, an order
directing NCF to stop causing the loss of Cullen’s legal
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materials, and requiring NCF to issue Cullen a second legal tote
for storage of Cullen’s legal materials in his cell. Cullen has
not included a request for damages in his prayer for relief.
Discussion
I. Equal Protection
A. Applicability at NCF and NHSP
Claim 1(a), as identified in this Order, is a claim that
the one-tote policy has been applied at NCF but not at the NHSP,
in violation of Cullen’s right to equal protection. The one
tote policy, however, as set forth in DOC Policy and Procedure
Directive (“PPD”) 9.02(N),2 applies, by its terms, to all inmates
2The one-tote policy at issue is reproduced below:
1. In order to ensure orderly conditions in an
inmate’s cell and in order to limit combustibles in our
facilities, inmates shall be permitted to maintain legal
materials not to exceed a maximum of two cubic feet or as
may fit in the approved container (approx. 2 cu. Ft.)
available from an approved vendor. If a container is
purchased, its only use must be for legal materials.
2. In order to ensure orderly conditions in an
inmate’s cell, to limit combustibles in our facilities, to
enhance security and to provide for the safety of staff and
inmates, Maximum Security (C5) inmates legal mail quantity
will be limited to a stack no longer than 1 cubic foot (12
in. X 12 in. X 12 in.).
N.H. Dep’t of Corrs. Policy & Procedure Directive 9.02(N),
quoted in Towle v. Warden, N.H. State Prison, No. 15-cv-117-SM,
2017 U.S. Dist. LEXIS 30642, at *2 n.2, 2017 WL 888733, at *1
n.2 (D.N.H. Jan. 30, 2017), R&R approved, 2017 U.S. Dist. LEXIS
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in DOC custody, and has been applied to limit inmates’ access to
legal materials in their cells at both NCF and the NHSP. See
generally Towle v. Warden, N.H. State Prison, No. 15-cv-117-SM,
2017 U.S. Dist. LEXIS 30642, 2017 WL 888733 (D.N.H. Jan. 30,
2017) (ECF No. 56), R&R approved, 2017 U.S. Dist. LEXIS 30359,
2017 WL 875800 (D.N.H. Mar. 3, 2017), appeal filed, No. 17-1251
(1st Cir. Mar. 23, 2017). Accordingly, Cullen’s claim of an
equal protection violation arising from prison officials’
alleged failure to apply the one tote policy at the NHSP (Claim
I(a)), should be dismissed for failure to state a claim.
B. Exceptions Made at NHSP, But Not Available to Cullen
Citing portions of the testimony of NHSP Warden Michael
Zenk reported in the January 30, 2017 Report and Recommendation
in Towle (ECF No. 56), 2017 WL 888733, at *3, 2017 U.S. Dist.
LEXIS 30642, at *7-*8, Cullen argues that NHSP inmate Robert
Towle has been granted an exception to PPD 9.02(N) that has not
been granted to Cullen. Specifically, at a hearing held on a
motion for a preliminary injunction filed by Towle, NHSP Warden
Zenk testified, in part, that Zenk would make exceptions to the
PPD 9.02(N) policy on a case-by-case basis, for NHSP inmates
with ongoing or anticipated litigation requiring that the inmate
have access to materials exceeding the limit set by that policy.
30359, 2017 WL 875800 (D.N.H. Mar. 3, 2017), appeal filed, No.
17-1251 (1st Cir. Mar. 23, 2017).
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While it is not clear to this court that Towle and Cullen
are similarly-situated in all respects, Cullen’s allegations
indicate that both inmates had an excess of legal materials in
their cells in 2016, that both inmates had PPD 9.02(N) applied
to restrict their access to those materials, and that after
Towle filed a lawsuit challenging that policy, Warden Zenk
instituted an administrative process for considering Towle’s
request for an exception to PPD 9.02(N) at the NHSP. Nothing
before this court suggests that the process for seeking an
exception to PPD 9.02(N), described in Zenk’s testimony in
Towle, is similarly offered to inmates at NCF. As there does
not appear to be any reason for distinguishing between NHSP and
NCF inmates with respect to whether exceptions to PPD 9.02(N)
are available, Cullen has asserted facts suggesting that DOC
impermissibly differentiates between NCF and NHSP inmates in its
application of PPD 9.02(N). Accordingly, in an Order issued
this date, the court has directed service of Cullen’s Fourteenth
Amendment equal protection claim (Claim 1(b)), challenging the
failure of prison officials to offer Cullen an opportunity to
obtain an exception to the one-tote policy set forth in PPD
9.02(N).
II. Access to the Courts
A “prisoner alleging a violation of his right of access [to
the courts] must show that prison officials caused him past or
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imminent ‘actual injury’ by hindering his efforts to pursue such
a claim.” Petlock v. Nadrowski, No. CV 16-310(FLW), 2016 WL
7173781, at *11, 2016 U.S. Dist. LEXIS 169816, at *26 (D.N.J.
Dec. 8, 2016) (citation omitted). To prove that the right of
access to the courts has been violated, the inmate must show he
was actually injured in his ability to pursue a nonfrivolous
claim, in a post-conviction proceeding or other civil rights
matter that the inmate had a right to litigate. See Lewis v.
Casey, 518 U.S. 343, 352, 354-55 (1996). “[T]he underlying
cause of action, whether anticipated or lost, is an element that
must be described in the complaint, just as much as allegations
must describe the official acts frustrating the litigation.”
Christopher v. Harbury, 536 U.S. 403, 415 (2002).
Stripped of legal conclusions, Cullen’s factual
allegations, liberally construed, are that, due to the
application of PPD 9.02(N), he lost “research paperwork” he
needed to pursue claims challenging his conviction; that his
current “research paperwork” relates to claims of ineffective
assistance of counsel in his state court criminal trial, at
sentencing, on appeal, and in post-conviction proceedings, and
also relates to a challenge to the legality of the sentence
imposed by the Sentence Review Division; and that it is time-
consuming, expensive, and, in part, impossible for Cullen to
replace all of the materials he lost because of the one-tote
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policy. Cullen has stated a plausible claim that the
application of PPD 9.02(N) to him has hindered his ability to
pursue a post-conviction claim, which Cullen may be able to show
is non-frivolous. Without prejudice to defendant’s ability to
seek dismissal or summary judgment on Cullen’s access to the
courts claim, upon any valid basis, the Order issued this date
directs service of that claim (Claim 2) upon defendant.
Conclusion
For the foregoing reasons, Claim 1(a) should be dismissed.
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
May 4, 2017
cc: Allan Cullen, pro se
Scott Rogers, pro se
Ronald Bourdon, pro se
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