Gibbs v. NH State Prison, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Peter E. Gibbs, Jr.
v. 	Civil No. 17-cv-299-PB
N.H. State Prison Warden
Michael Zenk et al.1
REPORT AND RECOMMENDATION
Peter E. Gibbs, Jr., a New Hampshire Department of
Corrections (“DOC”) inmate currently housed in a prison in the
State of Washington, has filed this action asserting that his
transfer to that facility is unconstitutional. 	Before the court
are defendants’ motion to dismiss (Doc. No. 14), defendants’
supplemental motion to dismiss (Doc. No. 28), and plaintiff’s
motions for injunctive relief (Doc. Nos. 18, 21), see Apr. 17,
2018 Order. 	The motions for injunctive relief have also been
construed as complaint addenda, see Apr. 19, 2018 Order, and are
1Plaintiff has named, as defendants to this action: (former)
New Hampshire State Prison (“NHSP”) Warden Michael Zenk,
(former) New Hampshire Department of Corrections (“DOC”)
Director of Classifications Kim Lacasse, DOC Director of
Security Christopher Kench, (former) DOC Commissioner William
Wrenn, DOC Director of Classifications FNU Provencher, and
(former) NHSP Warden Richard Gerry.
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before this court for preliminary review under LR 4.3(d)(1) and
28 U.S.C. § 1915A.
Background
Gibbs’s claims in this lawsuit relate to his transfer to a
prison in Maine in 2011 and a prison in Washington in 2016, and
to the conditions of his confinement in Washington. 	Gibbs first
asserts that, sometime prior to 2007, a group of New Hampshire
State Prison (“NHSP”) guards beat him up after he told the press
that he thought the NHSP was improperly producing New England
Patriots commemorative license plates. 	Gibbs claims here that
he was shipped out-of-state in 2011 and 2016 in retaliation for
speaking out about the license plates in 2007.2
Gibbs further alleges that at some point prior to November
2011, a group of corrections officers planted knives in cells in
the NHSP Special Housing Unit (“SHU”), assaulted SHU inmates,
and created false disciplinary reports against Gibbs and other
inmates. 	Gibbs asserts that the State Police and New Hampshire
2In 2005, Gibbs, through counsel, filed a lawsuit in which
he alleged that corrections officers assaulted Gibbs in
retaliation for speaking about the allegedly improper production
of New England Patriots license plates. 	See Gibbs v. Daniels,
No. 05-cv-359-SM (D.N.H.). 	That case settled in 2007. 	See id.,
Sept. 24, 2007 Stip. of Dismissal (ECF No. 36).
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Attorney General’s Office (“AG”) investigated that misconduct,
and that the State paid money to settle the claims of some of
those inmates. 	Gibbs alleges that he was not a plaintiff in
those inmate lawsuits, and that he did not receive any money
from the settlements.3 	Gibbs asserts that, knowing that
corrections officers had engaged in misconduct, and seeking to
cover up those officers’ misconduct by sending Gibbs out of
state, defendants, former NHSP Warden Michael Zenk, former NHSP
Warden Richard Gerry, former DOC Commissioner William Wrenn, DOC
Director of Security Christopher Kench, former DOC Director of
Classifications Kim Lacasse, and Lacasse’s successor, Ms.
Provencher, at the direction of the AG, arranged for Gibbs’s
3Saulnier v. Bettez, 1:10-cv-00423-SM (D.N.H., filed Sept.
22, 2010), Boothby v. Jorgensen, No. 1:10-cv-00424-JL (D.N.H.,
filed Sept. 22, 2010), Ford v. Bettez, No. 1:10-cv-00444-SM
(D.N.H., filed Oct. 1, 2010), and Lawlor v. Bettez, No. 1:10-cv-
00445-JL (D.N.H., filed Oct. 1, 2010), appear to be the cases to
which Gibbs refers. 	Saulnier’s and Lawlor’s cases settled in
2012. 	See Saulnier, Apr. 17, 2012 Stip. for Dismissal (ECF No.
27); Lawlor, Nov. 27, 2012 Assented-to Mot. to Dismiss (ECF No.
38). 	Ford through counsel filed a notice of voluntary dismissal
in December 2011, without prejudice to his ability to refile
claims in state court. 	See Ford, Dec. 12, 2011 Assented-to Mot.
to Dismiss without Prej. (ECF No. 44). 	Boothby went to trial on
some of his claims, and the jury returned a defendants’ verdict
in 2012. 	See Boothby, June 14, 2012 Jury Verdict (ECF No. 71);
June 8, 2012 Assented-to Mot. to Dismiss Duffy & O’Brien (ECF
No. 63).
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transfer to a Maine prison in 2011, and then to a Washington
prison in 2016.
Gibbs further asserts that the conditions of his
confinement in Washington violate his rights. 	He has asserted
that he is not safe in the Washington prison,4 and that he lacks
access to New Hampshire law books, legal assistance, and proper
medical care. 	Gibbs further asserts that the Washington prison
system requires him to pay into a fund for Washington crime
victims, and to pay for the cost of his incarceration, even
though, he asserts, New Hampshire pays Washington to house him,
and he has never been convicted of any offense in Washington.
The November 13, 2017 Order (Doc. No. 13) in this case
directed service of the original complaint upon defendants.
Defendants filed a motion to dismiss, see Doc. No. 14, and a
supplemental motion to dismiss, see Doc. No. 28. 	Plaintiff, in
4In the Complaint (Doc. No. 1), filed in July 2017, Gibbs
expressed a fear that he could be a target of life-threatening
violence in the Washington prison, saying, “I could be killed in
this out of state prison,” and that New Hampshire DOC officials
were “allowing [Gibbs] to be a victim.” 	Id. at 2-3, 11. 	Gibbs
did not further clarify why he feared for his safety, and his
motions seeking a transfer back to New Hampshire (Doc. Nos. 18,
21) have not repeated that Gibbs is concerned about a risk of
violence in the Washington prison. 	Nothing in this Report and
Recommendation is intended to prevent Gibbs from pursuing claims
relating to his personal safety in a Washington court.
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turn, filed a pair of motions for injunctive relief (Doc. Nos.
18, 21), asserting new facts relating to his claims, which have
been referred for a Report and Recommendation (“R&R”), see Apr.
17, 2018 Order. 	Those motions, construed as complaint addenda,
are also here for preliminary review to identify Gibbs’s claims
asserted therein, and to determine if those claims may proceed.
See 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2); LR 4.3(d)(1).
Claims
In the complaint (Doc. No. 1) and complaint addenda (Doc.
Nos. 18, 21), Gibbs asserts the following claims seeking damages
and/or injunctive relief under 42 U.S.C. § 1983:
1. 	Defendants transferred Gibbs to a prison in Maine, in
November 2011:
a. 	In retaliation for Gibbs’s exercise of his First
Amendment rights, relating to statements Gibbs made to
the media and his litigation of a civil rights case
from 2005-2007;
b. 	In a manner limiting Gibbs’s access to his
family, in violation of Gibbs’s freedom of association
under the First and Fourteenth Amendments; and
c. 	In a manner preventing Gibbs from filing lawsuits
regarding official misconduct that occurred prior to
November 2011, in violation of Gibbs’s right of access
to the courts under the First Amendment.
2. 	Defendants transferred Gibbs to a prison in Washington
in April 2016:
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a. 	In retaliation for Gibbs’s exercise of his First
Amendment rights, relating to statements Gibbs made to
the media and his litigation of a civil rights case
from 2005-2007:
b. 	In a manner limiting Gibbs’s access to his
family, in violation of Gibbs’s freedom of association
under the First and Fourteenth Amendments; and
c. 	In a manner preventing Gibbs from filing lawsuits
regarding official misconduct that occurred prior to
November 2011, in violation of Gibbs’s right of access
to the courts under the First Amendment.
3. 	The conditions of Gibbs’s confinement in Washington
violate Gibbs’s federal rights, as Gibbs:
a. 	Lacks protection from threats to his safety, in
violation of his Eighth Amendment rights;
b. 	Lacks access to medical care, in violation of his
Eighth Amendment rights; and
c. 	Has suffered a deprivation of funds from his
inmate account, without due process, in violation of
his Fourteenth Amendment rights, as those funds are
diverted to pay into a fund for Washington crime
victims and to pay for his incarceration, although he
has not been convicted of any crime in Washington, and
New Hampshire pays Washington to incarcerate him.
Discussion
I. 	Preliminary Review5
A. 	Retaliatory Transfers (Claims 1(a) and 2(a))
5The court applies the preliminary review standard applied
in the November 13, 2017 Order (Doc. No. 8), to this court’s
preliminary review of the amended pleadings.
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Plaintiff asserts that his transfers to Maine in 2011 and
to Washington in 2016 were taken to retaliate against him for
his exercise of First Amendment rights in 2005-2007 relating to
the prison’s production of New England Patriots license plates.
To state a First Amendment retaliation claim, an inmate must
allege: (1) that the conduct which led to the retaliation was
protected by the First Amendment; (2) that she or he suffered a
non-de minimis adverse action at the hands of the prison
officials; and (3) that there was a causal link between the
exercise of her or his First Amendment rights and the adverse
action taken. 	See Hannon v. Beard, 645 F.3d 45, 48 (1st Cir.
2011). 	An adverse act taken in response to protected conduct is
de minimis if it would not deter an individual of ordinary
firmness from exercising his or her First Amendment rights. 	See
Starr v. Dube, 334 F. App’x 341, 342-43 (1st Cir. 2009).
The allegations in the complaint suggesting causation are
remote in time, separated from the events at issue by more than
four years. 	Without more, the fact that Gibbs was transferred
at some point after the pertinent exercise of his First
Amendment rights does not give rise to a reasonable inference of
a causal connection between Gibbs’s exercise of his First
Amendment rights. 	See, e.g., Keeling v. Barrager, 666 F. App’x
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153, 155 (3d Cir. 2016) (officer’s allegedly retaliatory
transfer of prisoner to a different cellblock thirteen months
after prisoner filed a lawsuit against the officer, without
more, “too remote in time to infer an unlawful motive”); Schmitt
v. Rice, 421 F. App’x 858, 862-63 (10th Cir. 2011) (false
disciplinary report filed three years after prisoner’s
successful litigation challenging disciplinary convictions,
without more, too remote in time create inference of causation
necessary to support retaliation claim). 	Accordingly, the
district judge should dismiss Claims 1(a) and 2(a).
B. 	Freedom of Association (Claims 1(b) and 2(b))
Gibbs asserts that, as a practical matter, the transfers to
Maine in 2011 and to Washington in 2016 have interfered with his
ability to receive visits from his mother and daughter. 	Gibbs
alleges that he began to complain about the effect on his family
of his transfer to Maine on the date he arrived there, and that
in 2013, prison officials received letters regarding his
mother’s inability and his daughter’s reduced ability to visit
him outside of New Hampshire. 	This court has construed Gibbs’s
complaint as asserting that the transfers deprived Gibbs of his
right to associate with his family, in a manner violating the
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Fourteenth Amendment Due Process Clause and the First Amendment.
An inmate does not have a liberty interest in unfettered
visitation that is protected by the Constitution. 	Ky. Dep’t of
Corrs. v. Thompson, 490 U.S. 454, 460 (1989). 	Further, an
inmate “has no justifiable expectation that he will be
incarcerated in any particular State.” 	Olim v. Wakinekona, 461
U.S. 238, 245 (1983). 	The Fourteenth Amendment Due Process
Clause does not, in and of itself, give rise to any protected
liberty interest in remaining in-state to serve a prison
sentence. 	Id. at 248. 	The Supreme Court has noted that the
First Amendment “freedom of association is among the rights
least compatible with incarceration,” and that “[s]ome
curtailment of that freedom must be expected in the prison
context.” 	Overton v. Bazzetta, 539 U.S. 126, 131 (2003)
(citations omitted).
A plaintiff must make two showings to succeed on a
Fourteenth Amendment familial-association claim: “(1) that the
defendants intended to deprive him of his protected
relationship, and (2) that balancing the individual’s interest
in the protected familial relationship against the state’s
interests in its actions, defendants either unduly burdened
plaintiff’s protected relationship, or effected an unwarranted
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intrusion into that relationship.” 	Leek v. Miller, 698 F. App’x
922, 927 (10th Cir. 2017). 	In addition, “[t]he conduct or
statement must be directed at the familial relationship with
knowledge that the statements or conduct will adversely affect
that relationship.” 	Id. (citations omitted) (emphasis in
original).
Gibbs has alleged that beginning on the date of his
transfer to Maine, he began to complain about being transferred,
but he has not pleaded any facts suggesting that prison
officials who transferred him in November 2011 did so with
knowledge that the transfer would adversely affect his family
relationships. 	Accordingly, the district judge should dismiss
the family association claim (Claim 1(b)) regarding the 2011
transfer to Maine.
As to the transfer to Washington in 2016, defendants’
knowledge that the transfer would substantially increase the
distance between Gibbs and his family members, does not, without
more, demonstrate that prison officials intended to interfere
with Gibbs’s family relationships or that they knew that the
transfer would adversely affect Gibbs’s familial relationships
to an extent that would give rise to an actionable claim. 	Gibbs
has not alleged that his ability to correspond with his family
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members by telephone or mail was restricted by the transfer, and
nothing suggests that defendants caused any limits, apart from
distance, to be placed on Gibbs’s ability to receive family
visits. 	Accordingly, the district judge should dismiss the
familial association claim (Claim 2(b)) relating to the 2016
transfer to Washington, for failure to state a claim.
C. 	Right of Access to Courts (Claims 1(c) and 2(c))
The court construes the complaint and complaint addenda as
asserting that the transfer violated Gibbs’s right of access to
the courts. 	To state a claim that a plaintiff’s right of access
to the courts has been violated, the plaintiff must allege facts
showing he was actually injured in his ability to pursue a
nonfrivolous claim in a post-conviction proceeding or other
civil rights matter that the plaintiff had a right to litigate.
See Lewis v. Casey, 518 U.S. 343, 352, 354-55 (1996). 	In other
words, plaintiff must allege facts that, if taken as true, would
show “‘that an actionable claim has been lost or rejected or
that presentation of the claim is currently being prevented’”
due to defendants’ actions. 	Guglielmo v. N.H. State Prison, 111
F.3d 122, 1997 WL 205290, at *1, 1997 U.S. App. LEXIS 8616, at
*2-*3 (1st Cir. Apr. 25, 1997) (unpublished table decision)
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(citing Lewis, 518 U.S. at 356). 	“[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).
Gibbs alleges that he was transferred from New Hampshire to
Maine in 2011 to cover up misconduct that occurred prior to that
transfer. 	Gibbs has not pleaded facts indicating how the
transfer to Maine prevented him from accessing the courts; his
filing here a letter he asserts he received from inmate Scott
Ford while Gibbs was incarcerated in Maine, describing the
inmates’ lawsuits, undermines the contention that he was unable
to communicate with participants in those lawsuits. 	Even
assuming, without deciding, that the transfer to Maine was
intended to separate Gibbs from those inmates, Gibbs has not
alleged facts to suggest that his transfer to Maine prevented
him from litigating any claim he may have had against any
corrections officer or other prison official, while in Maine.
Gibbs’s assertion that he was sent to Maine as part of a cover
up, without more, is entirely speculative, and does not state a
claim that the transfer denied Gibbs access to the courts.
Accordingly, the district judge should dismiss Gibbs’s access to
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the courts claim, relating to the transfer to Maine in 2011
(Claim 1(c)).
With respect to Gibbs’s access to the courts claim relating
to his transfer to Washington in 2016, Gibbs has alleged that
the prison law library in Washington lacks New Hampshire law
books, and that the lack of adequate legal resources prevents
him from filing a “State appeal” and litigating his claims
relating to NHSP officer misconduct. 	Gibbs has not pleaded any
facts here, however, to state a claim that his planned state
appeal is nonfrivolous, which is an element of an access to the
courts claim. 	See Christopher, 536 U.S. at 415. 	Furthermore,
the statute of limitations on Gibbs’s claims against any prison
officials, based on their conduct in 2011 or earlier, would
appear to have expired several years before his 2016 transfer to
Washington. 	See N.H. Rev. Stat. Ann. § 508:4; see also Gilbert
v. City of Cambridge, 932 F.2d 51, 57 (1st Cir. 1991). 	Gibbs
has not alleged facts to show that the transfer to Washington
prevented him from filing any nonfrivolous claim. 	Cf. Harper v.
Dinella, 589 F. App’x 67, 69 (3d Cir. 2015) (because the only
discernible claims in underlying action were time-barred, inmate
failed to identify any nonfrivolous claim upon which to base his
access to courts claim). 	Accordingly, the district judge should
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dismiss Gibbs’s access to the courts claim relating to the
Washington transfer (Claim 2(c)).
D. 	Current Conditions of Confinement (Claim 3)
Gibbs has alleged that his safety is not assured at the
Washington prison, and that he is unable to obtain adequate
medical care at that facility. 	Gibbs further alleges that
Washington prison officials improperly debit money from his
inmate account.
Acts of third parties in Washington appear to be the
immediate cause of Gibbs’s current conditions of confinement.
Gibbs has not alleged that the defendants here have any control
over the conditions in the prison in Washington. 	Gibbs has not
alleged facts showing that any New Hampshire defendant should be
held liable for allegedly unconstitutional conduct undertaken by
prison officials or medical providers in Washington.
To assert claims for damages under 42 U.S.C. § 1983,
alleging that the New Hampshire defendants in this case are
responsible for the conditions in the Washington prison, Gibbs
must assert facts that allow the court to find that the risk of
harm created by the transfer was foreseeable, and “that there
was ‘some direct relation between the injury asserted and the
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injurious conduct alleged.’” 	Cty. of L.A. v. Mendez, 137 S. Ct.
1539, 1548–49 (2017) (citations omitted). 	The conditions Gibbs
has highlighted are not alleged in a manner that states a claim
that they were a foreseeable consequence of the transfer.
Furthermore, Gibbs has not alleged sufficient facts to
state Eighth Amendment claims upon which relief could be
granted, based on his assertions of unspecified threats of
violence, and his lack of access to medical care in Washington,
as he has not demonstrated that any prison official or medical
provider has been subjectively aware of any substantial risk of
serious harm to Gibbs, relating to those matters.6 	Accordingly,
the claims summarized above as Claim 3 should be dismissed
without prejudice to Gibbs’s ability to file a new case
asserting all of the facts underlying his claims against any
Washington prison officials and medical providers he may
identify, in a Washington court where venue may be appropriate,
6A prison official “violates an inmate’s Eighth Amendment
right against cruel and unusual punishment ‘based on a failure
to prevent harm’ to the inmate only under two circumstances:
‘the inmate must show that he is incarcerated under conditions
posing a substantial risk of serious harm,’ and the prison
official must have acted, or failed to act, with “deliberate
indifference to inmate health or safety.” 	Lakin v. Barnhart,
758 F.3d 66, 70 (1st Cir. 2014) (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)).
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where that court could properly exercise jurisdiction over those
defendants.
II. 	Motions for Injunctive Relief (Doc. Nos. 18, 19)
“‘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.’” 	Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (citation omitted). 	“Though each
factor is important . . . ‘[t]he sine qua non of this four-part
inquiry is likelihood of success on the merits.’” 	Sindicato
Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699
F.3d 1, 10 (1st Cir. 2012) (per curiam) (citation omitted). 	“To
demonstrate likelihood of success on the merits, plaintiffs must
show ‘more than mere possibility’ of success – rather, they must
establish a ‘strong likelihood’ that they will ultimately
prevail.” 	Id. (citation omitted). 	The burden of proof is on
the movant. 	See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d
13, 18 (1st Cir. 2006).
For reasons explained in this Report and Recommendation
(“R&R”), all of the claims in this lawsuit should be dismissed.
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Accordingly, Gibbs has failed to demonstrate a likelihood of
success on the merits of any claim asserted in this action. 	The
motions for injunctive relief (Doc. Nos. 18, 19), therefore,
should be denied, without prejudice. 	See Sindicato
Puertorriqueño, 699 F.3d at 10.
III. Motions to Dismiss (Doc. Nos. 14, 28)
In this R&R, the undersigned magistrate judge recommends
that the district judge dismiss all of the claims asserted in
this lawsuit pursuant to its authority to screen prisoner
complaints under 28 U.S.C. § 1915(e)(2), 28 U.S.C. § 1915A, and
LR 4.3(d)(1). 	Accordingly, the motions to dismiss (Doc. Nos.
14, 28) should be denied as moot, if this court approves this
R&R.
Conclusion
For the foregoing reasons, the district judge should
DISMISS Claims 1 and 2 (numbered above) for failure to state a
claim; DISMISS Claim 3 without prejudice to Gibbs’s ability to
assert claims against Washington corrections officials or
medical providers, in a court in that state; DENY AS MOOT
defendants’ motion to dismiss and supplemental motion to dismiss
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(Doc. Nos. 14, 28); and DENY plaintiffs’ motions for injunctive
relief (Doc. Nos. 18, 19).
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
June 28, 2018
cc: 	Peter E. Gibbs, Jr., pro se
Anthony Galdieri, Esq.
Lynmarie C. Cusack, Esq.
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