Frene v. NH State Prison

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Roy Frene
v. 	Civil No. 17-cv-305-JD
New Hampshire State Prison
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff Robert Roy Frene’s
complaint (Doc. No. 1) and complaint addenda (Doc. Nos. 3, 5),
in this 42 U.S.C. § 1983 action, alleging that the New Hampshire
State Prison (“NHSP”) violated his rights during his
incarceration at that facility. 	The matter is before the court
for preliminary review pursuant to 28 U.S.C. § 1915A(a) and LR
4.3(d)(1).
Standard of Review
In determining whether a pro se pleading states a claim,
the court construes the pleading liberally. 	See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). 	Disregarding any legal
conclusions, the court considers whether the factual content in
the pleading and inferences reasonably drawn therefrom, taken as
true, state a facially plausible claim to relief. 	Hernandez-
Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Discussion
I. 	Conditions of Confinement
A. 	Factual Assertions
Frene asserts that while he was incarcerated at the NHSP,
he was held in a “very hot” cell for six days without out-of-
cell time, a shower, or fresh air. 	Frene also claims that
during that time, he was given food through cell bars that had
lead paint on them, had to sleep on a mattress that smelled like
urine without a sheet, and that there was human saliva and feces
on the cell walls and floor. 	Frene further alleges that he was
assaulted by another inmate while at the NHSP.
B. 	Fourteenth and Eighth Amendment Claims
It is unclear from Frene’s complaint whether he was a
pretrial detainee or a sentenced prisoner while housed at the
NHSP during the time at issue in this case. 	Frene’s claims
arise under the Fourteenth Amendment’s Due Process Clause if he
was a pretrial detainee at that time, and if he was a sentenced
prisoner, under the Eighth Amendment’s protection from cruel and
unusual punishment.
The Fourteenth Amendment Due Process Clause prohibits
subjecting pretrial detainees to conditions of confinement that
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amount to pretrial punishment. 	See Bell v. Wolfish, 441 U.S.
520, 535 (1979). 	The Eighth Amendment “prohibits prison
officials from depriving sentenced inmates of ‘the minimal
civilized measure of life’s necessities.’” 	Brown v. Plata, 131
S. Ct. 1910, 1959 (2011) (citation omitted).
To assert a claim under the Eighth or Fourteenth Amendment,
plaintiff must, in addition to demonstrating that he was
subjected to conditions of confinement that were severe or
dangerous enough to violate the constitution, allege facts
regarding the defendant’s state of mind. 	Mere negligence does
not suffice. 	“‘[A] prison official cannot be found liable under
the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety.’” 	Giroux v. Somerset
Cty., 178 F.3d 28, 32 (1st Cir. 1999) (citations omitted).
“‘[L]iability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process.’” 	Kingsley
v. Hendrickson, 135 S. Ct. 2466, 2472 (2015) (citation omitted)
(emphasis in original).
Here, Frene has alleged that he was subjected to unsanitary
and unpleasant conditions of confinement for six days, and that
he was assaulted by another inmate, while at the NHSP. 	Further,
the complaint contains no facts indicating that any prison
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official was aware of a danger to Frene’s health or safety, and,
acting with a purposeful, knowing, and/or deliberately
indifferent state of mind, either disregarded or failed to take
reasonable steps to remedy that danger.
Accordingly, the assertions set forth in Frene’s complaint
and complaint addenda (Doc. Nos. 1, 3, 5) are insufficient to
support either an Eighth or Fourteenth Amendment claim
concerning the conditions of his confinement. 	The district
judge should therefore dismiss those claims, unless Frene files
an amended complaint within fourteen days of the date of this
Report and Recommendation, identifying individual defendants to
his conditions of confinement claims, indicating whether he was
a pretrial detainee or a sentenced inmate while at the NHSP, and
stating, with specificity, what each defendant did or did not do
to violate his rights, including facts to support a claim that
each defendant’s conduct was deliberately indifferent to a
substantial risk of serious harm to Frene, or undertaken
purposefully or knowingly, and not merely negligently.
II. 	Denial of Access to the Law Library/Attorney Phone Calls
Frene states that, while at the NHSP, he was denied access
to both the law library and telephone contact with his attorney
for six days. 	To state a claim that those deprivations violated
his constitutional right of access to legal materials or legal
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assistance, Frene must demonstrate that the deprivation of such
access constituted a denial of access to the courts, in that, as
a result of the denial of law library and telephone contact with
his attorney, he suffered actual injury to his ability to
litigate a challenge to his conviction or sentence or the
conditions of his confinement. 	See Lewis v. Casey, 518 U.S.
343, 356 (1996). 	Frene has not alleged that any deprivation he
claims to have suffered at the NHSP caused harm to any legal
case in which he was involved. 	Accordingly, the district judge
should dismiss Frene’s claims asserting the denial of law
library and telephone access to his attorney.
III. Challenge to Fact or Duration of Confinement
In his complaint, Frene also makes general assertions that
his incarceration at the NHSP violated his constitutional rights
because he was improperly being prosecuted for, or had already
been convicted of and sentenced for, exercising his
constitutional right to travel. 	Frene seeks to be released from
incarceration on that basis.
“‘[A] prisoner in state custody cannot use a § 1983 action
to challenge the fact or duration of his confinement. 	He must
seek federal habeas corpus relief (or appropriate state relief)
instead.’” 	González-Fuentes v. Molina, 607 F.3d 864, 872-73
(1st Cir. 2010) (quoting Wilkinson v. Dotson, 544 U.S. 74, 78
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(2005)). 	To the extent Frene seeks to challenge the propriety
of his conviction, detention or sentence, or seeks release from
confinement, he cannot do so in this § 1983 action. 	The
district judge, therefore, should dismiss those claims, without
prejudice to Frene’s ability to file them in a habeas action in
this court or in an appropriate state court action.
IV. 	Defendant NHSP
Frene has named the NHSP, a state agency, as the sole
defendant to this action. 	Frene’s claims against the NHSP are
barred by the Eleventh Amendment. 	See Town of Barnstable v.
O’Connor, 786 F.3d 130, 138 (1st Cir. 2015); New Hampshire v.
Ramsey, 366 F.3d 1, 14 (1st Cir. 2004). 	The district judge,
therefore, should drop the NHSP from this case.
Conclusion
For the foregoing reasons, the court recommends that the
district judge:
1. 	Dismiss plaintiff’s claims alleging denial of
access to the law library and denial of the ability to call
his attorney for six days;
2. 	Dismiss plaintiff’s claims challenging the fact
or duration of his confinement;
3. 	Drop defendant New Hampshire State Prison from
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this action; and
4. 	Dismiss plaintiff’s claims of unsanitary and
unpleasant conditions of confinement, and his claims
regarding an assault by another inmate, unless Frene,
within fourteen days of the date of this Report and
Recommendation, files an amended complaint that:
a. 	states whether Frene was at the NHSP as a
pretrial detainee or whether he was a sentenced inmate
when those events occurred;
b. 	names individual defendants to those claims;
and
c. 	states, with specificity, what each
defendant did or did not do to violate his rights,
including facts to support a claim that each
defendant’s conduct was deliberately indifferent to a
substantial risk of serious harm to Frene, or was
undertaken purposefully or knowingly.
5. 	If Frene does not file an amended complaint
within the time allotted for him to do so, the district
judge should direct that judgment be entered and the case
be closed.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
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R. Civ. P. 72(b)(2). 	The fourteen-day 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).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
February 16, 2018
cc: 	Robert Roy Frene, pro se
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