Towle v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Towle
v. Civil No. 15-cv-117-SM
Warden, New Hampshire State Prison
REPORT AND RECOMMENDATION
Before the court in this habeas corpus action is petitioner
Robert Towle’s motion for preliminary injunctive relief (Doc.
No. 31), which has been referred to the undersigned magistrate
judge for a report and recommendation as to disposition. Towle
has also filed a “Motion for Summary Judgment as to Injunctive
Relief” (Doc. No. 38), urging the court to grant his request for
an injunction. An evidentiary hearing on the preliminary
injunction motion was held on December 14, 2016, at which
respondent, who did not file a written objection to Towle’s
motion, objected to the issuance of a preliminary injunction.
Background
Towle is an inmate at the New Hampshire State Prison
(“NHSP”) serving a sentence imposed after a trial at which Towle
represented himself. Towle has amassed certain legal materials
relating to that conviction, filling multiple file boxes, that
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he claims he needs to effectively litigate collateral challenges
to his conviction and, should his conviction be overturned, to
retry his criminal case.1 Towle has been advised, pursuant to
Department of Corrections (“DOC”) Policy and Procedure Directive
(“PPD”) 9.02(N), see Jan. 21, 2016 DOC Mem. (Doc. No. 31-3),
that he is permitted to keep only two cubic feet of legal
materials at the prison.2 On August 1, 2016, Towle was issued a
5 Day Notice, directing him to reduce his legal materials to two
cubic feet by sending the excess materials out of the prison, or
1Towle’s legal materials at the prison include: paperwork
from his state criminal proceedings; documents related to his
state court post-conviction proceedings; legal materials and
notes from his former lawyers; his own trial preparation
materials and trial notes; documents relating to this case; and
transcripts, witness statements, and court orders from abuse and
neglect and termination of parental rights proceedings that
relate to his criminal case.
2PPD 9.02(N) states as follows:
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.).
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arranging for someone to pick up the excess materials. The 5
Day Notice stated that if Towle failed to have his excess
materials sent out or picked up, those materials would be
destroyed. Towle has asserted that, because of his extended
incarceration, he does not have anyone to whom he can send his
legal materials, and does not have anyone who would pick them up
and store them for him off of the prison grounds. Towle reduced
his legal materials to three file boxes, but as his remaining
materials still exceeded two cubic feet, on August 2, 2016, NHSP
Unit Manager Robert McGrath issued him a second 5 Day Notice
concerning his excess legal materials.
On August 1, after receiving the first 5 Day Notice, Towle
initiated a request for an exception to PPD 9.02(N) through the
prison’s administrative grievance process, by filing an Inmate
Request Slip (“IRS”) directed to the DOC Commissioner. On
August 3, 2016, NHSP Maj. Jon Fouts responded, denying Towle’s
request as follows:
This is a standard that applies to all inmates and
there are no provisions for exceptions. You could
move forward with the grievance procedure, but being
that the Commissioner is the final grievance
authority, I am not sure that this will do you any
good. Your call. Note: Mailing out (5 day notice) at
least allows you to maintain the documents. Failing
to comply with the 5 day notice means that the
documents will be destroyed. Think about that.
Aug. 3, 2016 IRS Resp. (Doc. No. 31-1, at 1).
When Towle was unsuccessful in attempting to protect his
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legal materials through the DOC’s administrative procedures, he
filed an emergency motion for preliminary injunctive relief
(Doc. No. 31) in this case, asserting that PPD 9.02(N), as
applied to him, is unconstitutional, and requesting that the
court enjoin the threatened destruction of his legal materials.
Judge McAuliffe granted the motion in part, to the extent that
the court directed the respondent not to destroy Towle’s
materials, and to provide Towle with access to the materials,
pending a hearing on Towle’s request for a preliminary
injunction. See Aug. 10, 2016 Order (Doc. No. 32), at 2. An
evidentiary hearing on Towle’s preliminary injunction request
was held before the undersigned magistrate judge on December 14,
2016, at which both parties appeared through counsel.3
Towle testified at the hearing that, at this time, he is
able to store approximately two cubic feet of legal materials in
his cell, and that two additional file boxes containing his
legal materials are currently in McGrath’s office. Towle has
been able to access all of his materials as necessary, as
McGrath has accommodated Towle’s requests for such access.
Towle seeks an injunction allowing him to keep and access all of
his legal materials during the pendency of this case, any appeal
3The court appointed counsel for Towle for the limited
purpose of litigating the preliminary injunction motion. See
Oct. 3, 2016 Order (Doc. No. 42).
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taken of this case, and any retrial of his criminal case that
may occur in the future.
Discussion
I. Preliminary Injunction
A. Standard
“A plaintiff seeking a preliminary injunction 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.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). “[T]he first two
factors, likelihood of success on the merits and of irreparable
harm, [are] ‘the most important’” in the calculus.” Bruns v.
Mayhew, 750 F.3d 61, 65 (1st Cir. 2014). “‘[P]erhaps the single
most important prerequisite for the issuance of a preliminary
injunction is a demonstration that if it is not granted the
applicant is likely to suffer irreparable harm before a decision
on the merits can be rendered.’” See Voice of the Arab World,
Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir.
2011) (quoting 11A C. Wright, A. Miller & M. Kane, Federal
Practice & Procedure § 2948, at 129 (2d ed. 1995)). The burden
of proof is on the movant. See Esso Std. Oil Co. v. Monroig–
Zayas, 445 F.3d 13, 18 (1st Cir. 2006).
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B. Irreparable Harm
Towle contends that he will suffer irreparable harm if he
is not allowed to keep and access all of his legal materials
currently stored at the NHSP, as he needs the materials to
challenge his conviction and to retry his case, if that
challenge is successful. Towle asserts that an injunction
ordering that prison officials continue to maintain and allow
him to access all of his legal materials is necessary to protect
him from irreparable harm, as, without such an injunction, he
would be denied the material he needs to challenge his
conviction in this habeas action. Further, Towle asserts that
even if he were allowed to maintain the materials during the
pendency of this case, prison officials have not adequately
guaranteed that he will have access to those materials for the
purposes of appealing the decision in this case if it is not
successful, or for retrying his criminal case in state court if
it is.
NHSP Warden Michael Zenk testified at the December 14
hearing. Zenk became the NHSP warden in February 2016, after
serving as a warden at three different federal incarcerative
facilities and in the state correctional system in Indiana.
Zenk testified that policies limiting the amount of legal
materials an inmate may possess help to ensure institutional
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security and inmate and staff safety, in that such policies
prevent inmates and staff from having their movement or ability
to see into inmate cells impeded by excess paperwork. Drawing
on his experience at other facilities, Zenk testified that most
sentenced inmates do not require access to more than two cubic
feet of legal material. Further, Zenk testified that in the
facilities where he has been the warden, prison policies
limiting permissible legal materials by volume have been
workable, in part because he has been able to make exceptions to
such policies in specific cases on an as-needed basis.
It became clear at the December 14 hearing that the NHSP
administration no longer maintains that PPD 9.02(N) is a “no
exceptions” policy. Zenk’s credible and undisputed testimony is
that, since Fouts’s denial of Towle’s August 1 IRS, Zenk, in
consultation with the Attorney General’s office, he has
established standards to evaluate inmate requests for exceptions
to PPD 9.02(N) for inmates engaged in active litigation where
the inmate needs more than two cubic feet of legal materials to
conduct that litigation. Zenk also testified that he has made
other prison officials aware that inmates may request exceptions
to PPD 9.02(N). Zenk further testified that, to allow inmates a
full opportunity to seek an exception to PPD 9.02(N), a 5 Day
Notice issued to an inmate concerning excess legal materials
will be stayed while the inmate seeks such an exception through
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the administrative grievance process. Zenk stated that he
intends to use reason and “correctional common sense” to
evaluate requests for exceptions to PPD 9.02(N). Zenk testified
that, were a NHSP inmate to request an exception to PPD 9.02(N),
he would consider each request on a case-by-case basis to
determine whether the requesting inmate had or anticipated
ongoing litigation that required him to have more legal
materials than permitted by PPD 9.02(N). Zenk testified that,
while he would review an inmate’s need for legal materials, that
review would not include reading all of an inmate’s legal
materials, or making a specific judgment as to whether the
content of any particular document was necessary to the inmate’s
litigation efforts.
Towle has not carried his burden of showing that he is
likely to suffer irreparable harm in the absence of the
requested injunction. Zenk, through his testimony and counsel,
has stated unequivocally and under oath that Towle will continue
to have access to the legal materials currently at the prison
while this case is pending, and during any appeal of this case
to the First Circuit and the United States Supreme Court.
Further, if Towle is successful in having his conviction
reversed, and needs to prepare for a retrial in this matter,
respondent has stated that Towle may request an exception to PPD
9.02(N) to maintain necessary legal materials in excess of two
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cubic feet, and that his materials would not be destroyed while
such a request was pending. In light of Zenk’s testimony, the
court has no reason to doubt that any request to maintain legal
materials exceeding the limit in PPD 9.02(N) that Towle makes in
the future would be considered by Zenk, who would make a
reasonable determination of the request. Any assertion that a
reasonable request would not be granted, in light of the
evidence before the court, is entirely speculative.
Towle has failed to meet his burden to demonstrate that he
is likely to suffer irreparable harm in the absence of a
preliminary injunction. The court need not consider the
remaining preliminary injunction factors at this time. Even
assuming that Towle could demonstrate a likelihood of success on
the merits of his constitutional claims regarding PPD 9.02(N),
Towle would not be able to overcome the finding that he will not
suffer irreparable harm if no injunction issues prior to the
completion of this case. Accordingly, the district judge should
deny Towle’s request for preliminary injunctive relief on that
basis, without prejudice to Towle’s ability to refile a similar
motion if prison officials do not continue to provide him with
reasonable access to legal materials relevant to litigation that
is currently pending in this court and in the state courts and
that exceeds two cubic feet, or if Towle is denied access to
legal materials necessary to litigate a retrial if he is
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successful in his efforts to vacate his convictions.
II. Culling of Documents
At the December 14 hearing, the court directed respondent’s
counsel to provide the court with a list of cases finding that
limitations on legal materials, similar to that in PPD 9.02(N)
do not violate an inmate’s First Amendment right to access the
courts where the policy admits of no exceptions. Respondent
filed a document (Doc. No. 51) in response to that Order.
Because the court need not reach the issue of whether Towle’s
right to meaningfully access the courts has been violated, the
court will not address that issue, or those cases, at this time.
The respondent’s response (Doc. No. 51), however, included
an assertion that Towle “should be made to cull” from his legal
materials any documents that originated in termination of
parental rights proceedings, abuse and neglect, or other
proceedings, that do not bear a docket number in Towle’s
criminal case. To the extent the request may be construed as a
request for a court order to that effect, the request should be
denied for two reasons.4
4The court notes that the respondent’s request that the
court direct Towle to remove certain documents from his legal
materials was not made by motion but was, instead, relief urged
in a filing unrelated to that request. That filing did not give
Towle proper notice of the respondent’s request and thus denied
him the opportunity to object. Nevertheless, the court has made
its recommendation as to the request at this time to avoid
unnecessary future litigation in this case. However, if the
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First, the undisputed testimony at the evidentiary hearing
clearly demonstrated the direct relevance of Towle’s legal
materials, including those from state court termination of
parental rights and abuse and neglect proceedings, to the
prosecution of this matter and to any retrial of his criminal
case that may occur in the future. The only fact that the
respondent has set forth in support of his argument that the
material should be culled, is that the materials in question do
not bear a docket number associated with his criminal case. The
respondent has not addressed Towle’s testimony that the
documents were actually used at his criminal trial, and that the
contents of the documents are directly related and relevant to
the events that formed the basis of the criminal charges.
Further, the respondent has not asserted any fact to counter
Towle’s assertion that the materials are necessary to his
defense at any future retrial. Accordingly, the respondent’s
request should be denied as contrary to the evidence in this
case.
Second, the court notes that, as implicitly expressed by
Fouts and Zenk at the evidentiary hearing, it is not the
appropriate function of prison personnel to make a substantive
court does not approve this recommendation, should the
respondent seek a court order, he should properly request such
relief by motion.
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evaluation of whether particular documents contained within an
inmate’s legal materials are necessary to an inmate’s underlying
legal matter. For that reason, in the context of this case,
respondent’s counsel has no role in determining what specific
legal materials Towle needs to meaningfully and successfully
prosecute a case against the respondent or in any action in
which the state, or a state official, is the opposing party.
There was no evidence at the hearing that any of Towle’s legal
materials, currently held at the prison, were irrelevant to
active and/or future legal proceedings. To the contrary, the
evidence showed that Towle, prior to filing his request for
injunctive relief, had already condensed his legal materials by
discarding any documents that were not relevant to a challenge
to or possible retrial of his criminal case. Accordingly, to
the extent respondent’s response (Doc. No. 51) is construed to
include a request for a court order directing Towle to remove
certain documents from his legal materials, the request should
be denied.
Conclusion
For the foregoing reasons, the district judge should
dissolve the temporary restraining order (Doc. No. 32) issued
August 10, 2016, and deny Towle’s motions for preliminary
injunction (Doc. No. 31) and for summary judgment as to
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injunctive relief (Doc. No. 38), without prejudice to Towle’s
ability to renew his request for preliminary injunctive relief
if prison officials deny Towle reasonable access to his legal
materials in the future. The district judge should also deny
respondent’s request (Doc. No. 51) for an order directing Towle
to cull documents from his legal materials.
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). 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
January 30, 2017
cc: Robert V. Towle, pro se
Donna J. Brown, Esq.
Elizabeth C. Woodcock, Esq.
Lynmarie C. Cusack, Esq.
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