Tito v. NH State Prison

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Albert Tito
v. 	Civil No. 19-cv-134-PB
New Hampshire State Prison
REPORT AND RECOMMENDATION
Plaintiff Albert Tito has filed a complaint (Doc. No. 1)
alleging violations of his constitutional rights during his
incarceration at the New Hampshire State Prison (“NHSP”). 	The
matter is before the court for preliminary review pursuant to 28
U.S.C. § 1915A and LR 4.3(d)(1).
Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed in forma pauperis. 	See LR 4.3(d)(1); see also
28 U.S.C. §§ 1915(e)(2), 1915A. 	The court construes pro se
complaints liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). 	Claims may be dismissed, sua sponte, 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 relief may be granted. 	See 28 U.S.C.
§§ 1915(e)(2), 1915A(b)(1); LR 4.3(d)(1)(A). 	In considering
whether the complaint states a claim, the court determines
whether, stripped of legal conclusions, and with all reasonable
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inferences construed in plaintiff’s favor, the complaint
contains “sufficient factual matter, accepted as true, to ‘state
a claim to relief’” upon which relief can be granted. 	Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Background
Plaintiff claims that the New Hampshire Department of
Corrections (“DOC”) upgraded his security classification in
November 2018 without providing him with the procedural
protections that he asserts the DOC classification guidelines,
handbook, and manuals indicate he must receive. 	Liberally
construed, the complaint asserts violations of Tito’s Fourteenth
Amendment due process right because prison officials
reclassified him and transferred him to the Close Custody Unit
(“CCU”), without strictly adhering to DOC rules related to such
actions. 	Plaintiff seeks relief against defendants including
members of his classification board under 42 U.S.C. § 1983 on
his own behalf and on behalf of other (unspecified) inmates who,
he asserts, have been similarly denied procedural protections by
unnamed prison officials.
Discussion
I. 	Claims Asserted on Behalf of Others
To the extent Tito seeks to assert claims on behalf of
other inmates, he cannot do so as a pro se party who is not an
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attorney. 	Accordingly, the district judge should dismiss the
claims Tito asserted on behalf of other inmates.
II. 	Fourteenth Amendment Due Process Claim
To establish that his due process rights have been
violated, a plaintiff must demonstrate that he has suffered a
deprivation of a protected interest in life, liberty, or
property. 	See Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
“A liberty interest may arise from the Constitution itself, by
reason of guarantees implicit in the word ‘liberty.’” 	Wilkinson
v. Austin, 545 U.S. 209, 221 (2005) (citations omitted).
Prisoners in general have no constitutionally protected interest
in their place of confinement, see Olim v. Wakinekona, 461 U.S.
238, 250 (1983), or in a particular security classification.
See Meachum v. Fano, 427 U.S. 215, 224 (1976).
Protected interests may also arise from prison regulations,
subject to the limitations set forth in Sandin v. Conner, 515
U.S. 472 (1995). 	See Wilkinson, 545 U.S. at 221-22. 	Under
Sandin, the court considers whether the restrictions at issue
impose an “‘atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’” 	Wilkinson,
545 U.S. at 223 (quoting Sandin, 515 U.S. at 484). 	The exhibits
attached to the Complaint indicate that Tito, who was released
from prison on parole in February/March 2019, was reclassified
to C-4 custody status in November 2018 following several
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disciplinary convictions. 	Accordingly, as a result of his
reclassification, Tito spent three or four months in CCU.
Tito has failed to show that either his security
reclassification or his transfer to CCU imposed any atypical and
significant hardship upon him. 	See, e.g., Beamon v. Pollard,
711 F. App’x 794, 795 (7th Cir. 2018) (“Whether a liberty
interest is implicated by disciplinary segregation depends on
both the time and conditions of confinement, and 135 days in
segregation—absent any atypical conditions related to
confinement—does not violate the Fourteenth Amendment.”
(citation omitted)). 	And to the extent Tito bases his claim on
prison officials’ violation of the DOC classification policies,
manual, and guidelines, such allegations, per se, do not give
rise to an actionable claim of any violation of his federally
protected rights. 	See Evans v. Baker, 442 F. App’x 108, 110
(5th Cir. 2011) (“The failure to comply with prison regulations
does not constitute a per se constitutional violation when other
constitutional safeguards have been employed.”). 	Accordingly,
as Tito has not pleaded allegations sufficient to state a claim
of a violation of his federal rights upon which relief can be
granted, the district judge should dismiss his complaint (Doc.
No. 1).
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Conclusion
For the foregoing reasons, the district judge should
dismiss this action in its entirety. 	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
April 22, 2019
cc: 	Albert Tito, pro se
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