Griffin v. Manchester, NH Parole Office et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John R. Griffin, Jr.
v. Civil No. 16-cv-438-JL
Manchester Parole Office,
Jennifer Walters, Lena Catovic,
Kevin Valenti, New Hampshire
Parole Board, Hillsborough County
Attorney’s Office, Mark Hastbacka,
Kent Smith, and Nicole Thorspecken
REPORT AND RECOMMENDATION
This Report and Recommendation (“R&R”) replaces the January
9, 2017 R&R (Doc. No. 11) (“January 9 R&R”). Plaintiff John R.
Griffin, Jr. was an inmate at the New Hampshire State Prison
(“NHSP”) when he filed this action, and he remains incarcerated
at this time, pending satisfaction of a condition upon which he
was granted parole in November 2016. Griffin brought this suit
pursuant to 42 U.S.C. § 1983, to challenge, as invalid and
retaliatory, a parole revocation proceeding in June 2016 that
resulted in Griffin’s return to prison, after he had been
paroled and living in the community since March 1, 2016.
Griffin’s complaint (Doc. No. 1) is before the court for
preliminary review, pursuant to LR 4.3(d)(1) and 28 U.S.C.
§§ 1915(e)(2) and 1915A. Also pending at this time are
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Griffin’s motion to substitute Assistant Hillsborough County
Attorney Kent Smith for Smith’s subordinate, defendant Attorney
Nicole Thorspecken (Doc. No. 6); a complaint addendum (Doc. No.
9); and Griffin’s motion seeking a hearing and a declaratory
judgment as to whether “Rule 7,” i.e., N.H. Admin. R. Par
401.02(b)(7), is unconstitutionally vague (Doc. No. 10).
Background1
Griffin was paroled on March 1, 2016, and was a parolee
living in the community, at “Helping Hands” in Manchester, until
May 10, 2016, when he was evicted. Griffin asserts that after
his May 10 eviction from Helping Hands, he was “forced into a
homeless situation.” Doc. No. 13, at 2. He camped in a wooded
area in Manchester until he was able to find a place to live on
May 28/29, 2016. Id.
At the time of Griffin’s eviction from Helping Hands, he
was litigating a state habeas petition in Hillsborough County
Superior Court South, challenging the validity of the conviction
for which he was on parole. Sometime prior to May 25, 2016,
Griffin mailed a letter to Assistant Hillsborough County
1The facts set forth in this R&R are derived from Griffin’s
complaint (Doc. No. 1); complaint addendum (Doc. No. 9); motion
to clarify (Doc. No. 17); motion to substitute defendants (Doc.
No. 6); motion for summary judgment (Doc. No. 13); and motion
regarding Rule 7 (Doc. No. 10).
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Attorney (“ACA”) Nicole Thorspecken regarding a motion for
reconsideration Griffin was filing in his state habeas petition
(“May 2016 Letter”). That letter, see Doc. No. 1, at 14 – 19,
includes expletives and statements about guns, explosives, and
armed citizens rising up. Griffin states that the letter was
intended to be a protest of the injustice of his underlying
arrest and incarceration. Griffin acknowledges that the letter
could be considered “insulting, unpleasant and caustic,” but
maintains that it was “not threatening.” Doc. No. 1, at 6. ACA
Kent Smith, Attorney Thorspecken’s supervisor, considered the
May 2016 Letter to be threatening, and asked the FBI to become
involved. See Doc. No. 6-1, at 1 (ACA Kent Smith, Ltr. to
Griffin, Oct. 4, 2016).
New Hampshire Department of Corrections (“DOC”) Parole
Officer Jennifer Walters attempted to locate Griffin at Helping
Hands sometime around May 19, 2016. See Doc. No. 13-1 (Parole
Officer Supervision Note, May 19, 2016). She discovered at that
time that Helping Hands had evicted Griffin on May 10. Id. In
her parole supervision notes, Walters noted that she would give
Griffin until June 1, 2016 to report to the parole office before
that office would request a warrant for his arrest. Id.
A warrant for Griffin’s arrest issued on May 27, 2016.
That warrant, issued by a member of the New Hampshire Adult
Parole Board (“APB”), charged Griffin with violating his parole
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by failing to be of good conduct (based on the May 2016 Letter)
and by failing to obtain the parole officer’s permission before
changing his residence. See Doc. No. 13-1 (arrest warrant, May
27, 2016).
The APB conducted a parole revocation hearing concerning
Griffin on June 21, 2016. Griffin appeared personally and
through counsel. See Doc. No. 1, at 20. Griffin alleges that
DOC Parole Officer Kevin Valenti made an offer of proof to the
Board, stating that people considered Griffin to be dangerous.
The Board concluded that Griffin had violated the terms of his
parole which required him to be “of good behavior,” see N.H.
Admin. R. Par 401.02(b)(7), and to obtain the parole officer’s
permission before changing his residence, see id. 401.20(b)(3).
The Board revoked Griffin’s parole at that time.
In July 2016, Griffin received notice that a third party,
Michael Salafia, had filed a stalking petition against Griffin
in Derry District Court sometime after June 13, 2016. The
stalking petition, the first page of which is filed as an
exhibit in this case, see Doc. No. 1, at 21, states that FBI
Agent Mark Hastbacka told Salafia that Griffin had implicated
Salafia in a plot to kill a judge and a prosecutor if Griffin’s
conviction were not annulled. Griffin argues that the stalking
petition, which he says resulted in the Derry District Court’s
issuance of a protective order, was based on false information
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provided to Salafia by Hastbacka, and that the petition was the
basis for Valenti’s statements at Griffin’s parole revocation
hearing regarding people fearing Griffin.
In August 2016, Griffin requested that the APB grant him a
new hearing so he could cross-examine Valenti and present
evidence to the Board. See Doc. No. 1, at 20. The Board denied
that request, stating that Griffin could request a new hearing
after meeting with a mental health provider in September 2016.
See id.
The APB reconsidered the revocation of Griffin’s parole on
November 15, 2016. The Board granted Griffin parole in that
hearing, conditioned on Griffin’s ability to obtain approved
housing. Griffin reports that he is on a waiting list for such
housing, and remains incarcerated at the NHSP in the interim.
See Doc. No. 17, at 1.
Claims
Seeking immediate release from confinement, damages,
community-based housing, and declaratory relief, Griffin asserts
the following claims in this action:
1. Defendants ACAs Nicole Thorspecken and/or Kent Smith;
DOC Parole Officers Jennifer Walters, Lena Catovic, and
Kevin Valenti; and FBI Agent Mark Hastbacka arrested
Griffin and initiated parole revocation proceedings against
him, in retaliation for Griffin’s exercise of his First
Amendment rights by writing the May 2016 Letter;
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2. Defendants violated Griffin’s Fifth and Fourteenth
Amendment rights to due process at his June 2016 parole
revocation as:
(a) the revocation was based, in part, on Griffin’s
violation of N.H. Admin. R. Par 401.02(b)(7), which is
void for vagueness;
(b) the revocation was based, in part, on false
testimony knowingly provided by Parole Officer Valenti
to the APB, regarding people in the community
perceiving Griffin to be dangerous, which, in turn,
was based on false statements knowingly made by FBI
Agent Hastbacka, in a conspiracy with the remaining
defendants, which was designed to induce a third party
(Salafia) to file a stalking petition in the Derry
District Court in June 2016; and
(c) the APB erred in finding that Griffin had violated
his parole, as Griffin’s conduct relating to the May
2016 Letter was not a crime under New Hampshire law,
and Griffin’s eviction and homelessness were
extenuating circumstances leading to Griffin’s failure
to notify his parole officer regarding his new
residence prior to his arrest on his parole violation.
Discussion
I. Preliminary Review
A. Standard
The magistrate judge in this court conducts a preliminary
review of prisoner complaints filed in forma pauperis. See LR
4.3(d). The magistrate judge may recommend to the district
judge that claims be dismissed if, among other things, the court
lacks jurisdiction, a defendant is immune from the relief
sought, or the complaint fails to state a claim upon which
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relief may be granted. See 28 U.S.C. §§ 1915(e)(2),
1915A(b)(1); LR 4.3(d)(1)(A). In conducting its preliminary
review, the court construes pro se complaints liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). The
complaint must contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief.'” See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted).
B. Eleventh Amendment
Plaintiff asserts claims against the Manchester Parole
Office (a component of the DOC), and the APB, both of which are
state agencies. Griffin’s claims against those agencies should
be dismissed, and those parties should be dropped, as such
claims are barred by the Eleventh Amendment. See Davidson v.
Howe, 749 F.3d 21, 27-28 (1st Cir. 2014); Coggeshall v. Mass.
Bd. of Reg. of Psychologists, 604 F.3d 658, 662 (1st Cir. 2010).
C. Municipal Liability
Plaintiff names the Office of the Hillsborough County
Attorney as a defendant in this action. To the extent that the
office is a county agency, it may not be held liable for
violating plaintiff’s federal constitutional rights under a
theory of respondent superior. See Iqbal, 556 U.S. at 677. A
“plaintiff who brings a section 1983 action against a
municipality . . . must identify a municipal policy or custom
that caused the plaintiff’s injury.” Haley v. City of Boston,
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657 F.3d 39, 51 (1st Cir. 2011) (citations and internal
quotation marks omitted). As the complaint does not identify
any municipal policy or custom pertinent to the claimed
unconstitutional actions here, the district judge should dismiss
claims asserted against the Hillsborough County Attorney’s
Office, and drop that party from this case.
D. Claim 1 – Retaliatory Proceedings
In Claim 1, Griffin seeks to hold a prosecutor, two parole
officers, and an FBI agent liable for retaliating against him
for exercising his First Amendment rights. Griffin asserts that
by initiating a retaliatory investigation, arrest, and parole
revocation proceeding in response to Griffin’s May 2016 Letter,
which resulted in the revocation of Griffin’s parole, those
defendants took adverse action against Griffin for exercising
his right of access to the courts, his right to petition the
government for redress of grievances, and his right to free
speech.
Without prejudice to defendants’ ability to move to dismiss
Claim 1 on any valid basis, this court allows the claim to
proceed as a claim for damages asserted under Bivens v. Six
Unknown Named Fed. Narc. Agents, 403 U.S. 388 (1971), and 42
U.S.C. § 1983. In a separate Order (Doc. No. 12), the court
directed service of this claim against FBI Agent Hastbacka and
DOC Parole Officers Jennifer Walters, Lena Catovic, and Kevin
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Valenti, and ACA Kent Smith.
E. Claim 2 – Invalidity of Parole Revocation
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court
held that,
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court’s issuance of a writ of
habeas corpus.
Id. at 486–87 (footnote omitted). The Heck rule requires courts
to dismiss § 1983 claims if a favorable judgment would
necessarily imply the invalidity of that prisoner’s conviction
or sentence. Id. at 487. The Heck rule has been extended to
bar § 1983 claims for relief which would necessarily imply the
invalidity of a decision to revoke parole. See White v.
Gittens, 121 F.3d 803, 807 (1st Cir. 1997) (applying Heck where
“favorable decision in the § 1983 proceeding would necessarily
call into question the validity of the state’s decree revoking
[plaintiff’s] parole and ordering him back to prison”); Farland
v. Wall, 91 F. Supp. 3d 74, 78 (D. Mass. 2015).
Claim 2 challenges the validity of Griffin’s parole
revocation on grounds that: state and federal agents conspired
to fabricate evidence, so that false testimony would affect the
Parole Board’s decision; the Parole Board erred in finding any
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violation of Griffin’s parole, as a matter of fact and state
law; and a parole regulation, forming one ground for the
revocation of Griffin’s parole, is void for vagueness. Griffin
is seeking immediate release and a declaration that the parole
revocation was invalid. Under Heck, Griffin must first show
that the parole revocation has been expunged, reversed, or
otherwise invalidated, or called into question by a federal
court’s issuance of a writ of habeas corpus. Griffin cannot
make that showing at this time. Accordingly, the district judge
should dismiss Claim 2.
II. Motion to Substitute Smith for Thorspecken (Doc. No. 6)
In a motion to amend the pleadings (Doc. No. 6), Griffin
seeks leave to substitute Attorney Kent Smith for defendant
Attorney Nicole Thorspecken. In a letter to Griffin, Smith took
responsibility for matters alleged by Griffin as to Thorspecken.
This court has construed Griffin’s filings liberally to name
Smith as a defendant, and has directed service on Smith in this
matter. The motion to substitute parties (Doc. No. 6) should be
granted, to the extent that the court should dismiss the claims
against Thorspecken, without prejudice, and drop Thorspecken as
a defendant.
III. Motion as to Parole Board Rule 7 (Doc. No. 10)
Griffin’s request for a declaratory judgment and other
relief, challenging the validity of N.H. Admin. R. Par
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401.02(b)(7), is barred by Heck. Until Griffin can show that
his parole revocation has been invalidated by the state, or
called into question by a federal court’s issuance of a writ of
habeas corpus, Griffin cannot obtain the relief he seeks in
Document No. 10. Accordingly, applying the Heck rule, the
district judge should deny the motion for a hearing and for a
declaratory judgment as to N.H. Admin. R. Par 401.02(b)(7) (Doc.
No. 10).
Conclusion
For the foregoing reasons, the district judge should
approve this Report and Recommendation and should:
1. Dismiss Claims 2 and 3;
2. Dismiss all claims against the Manchester Parole
Office, the APB, and the Hillsborough County Attorney’s
Office, and drop those defendants from this case;
3. Grant the motion to substitute defendants (Doc. No.
6), deem the claims asserted by Griffin against Nicole
Thorspecken to be asserted against Kent Smith, dismiss all
claims against Nicole Thorspecken without prejudice, and
drop Thorspecken as a party; and
4. Deny the motion for a hearing and to declare New
Hampshire Adult Parole Board Rule 7 invalid (Doc. No. 10).
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
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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 25, 2017
cc: John R. Griffin, Jr., pro se
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