Stone v. Hamel CV-91-385-B 06/01/93

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Lawrence Stone

v. Civil No. 91-385-B

Robert Hamel, et al.

O R D E R

Plaintiff Lawrence Stone commenced this action as a claim

for damages and declaratory relief pursuant to

The Magistrate Judge subseguently construed Stone's complaint a

also seeking habeas corpus relief pursuant to

.

See Stone v. Hamel, et al.. No. 91-385-B, slip op. at 1 (D.N.H.

Feb. 2, 1993) (Barry, M.J.); Stone v. Hamel, et al.. No. 91-385

D, slip op. at 3 (D.N.H. Dec. 18, 1991) (Barry, M.J.). This

matter is before me on the state's motion to dismiss. I. FACTS1

Stone is incarcerated at the New Hampshire State Prison

("NHSP"). He first became eligible for parole on or about April

1 , 1989. After a hearing on June 2 , 1989, the Parole Board

issued a decision approving Stone for parole. The decision

states that Stone's parole would become effective

on or after June 2, 1989, subject to a suitable parole program, continued good adjustment and the following Special Conditions:

A. [Stone] will participate regularly in Alcoholics' Anonymous to the satisfaction of the Probation/ Parole Officer.

G. [Stone] will refrain totally from the use of alcoholic beverages.

H. [Stone] will submit to breath, blood, or urinalysis testing for abuse substances at the direction of the Probation/Parole Officer.

See Complaint (document no. 4) (attachment).

On July 17, 1992, while still an inmate at NHSP, Stone

submitted to an on-site drug test. Stone was later informed that

1 This statement of facts is drawn from Stone's complaint and its attachments. In ruling on the state's motion to dismiss, I accept the truth of the allegations in the complaint and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes,

(1974); Ber niaer v. Meadow Green-wildcat Corp.,

(1st Cir. 1991) .

2 he had tested positive for marijuana and, as a result, the Prison

Disciplinary Board would hold a hearing on September 6, 1989 to

determine if he had committed a major infraction under the

prison's disciplinary rules. On August 24, 1989, the Parole

Board issued an order rescinding its prior decision granting

Stone parole. The Parole Board cited the pending disciplinary

action as its reason and stated that it would reconsider the

matter at its next meeting if the Disciplinary Board found him

not guilty. Alternatively, if the Board found Stone guilty, the

Parole Board agreed to rehear his case in December if he remained

free from disciplinary infractions for 90 days. The Parole Board

reached this decision without giving Stone a preliminary hearing

and without affording him an opportunity to retain counsel,

present evidence, or cross examine witnesses.

The Prison Disciplinary Board found Stone guilty of using

marijuana after a hearing on September 6, 1989. Stone was denied

an opportunity to guestion the technician who performed the drug

test and was not permitted to challenge other matters at the

hearing such as chain of custody, the gualifications of the

technician, and the validity of the test. Stone appealed the

decision to Commissioner Powell without success.

3 Stone remained free from disciplinary violations for the 90

days contemplated by the Parole Board's August 24, 1989 order.

The Parole Board informed Stone at the December 15, 1989 hearing

that his prior disciplinary violation would not be held against

him. Nevertheless, Stone claims that the Parole Board denied him

parole because he wore his hair in a long ponytail.2 In its

decision, the Board explained that the warden had recommended

that Stone be transferred first to the Medium Security Unit

("MSU") and then to the halfway house before being considered for

parole again. Stone remains ineligible for transfer to either

the MSU or the halfway house because he refuses to comply with a

prison regulation forbidding long hair at these facilities.

Thus, he has not yet become eligible to be reconsidered for

parole.

II. DISCUSSION

_____ The State has moved to dismiss Stone's § 1983 and habeas

corpus claims. The state's principal challenge to the § 1983

2 The state disputes these allegations and claims that the Board's December 15, 1989 decision denying Stone parole was based on the fact that Stone had been found guilty of another major disciplinary infraction in September 1989 for unauthorized possession or use of a prescription drug.

4 claims is that they are barred by the doctrine of res judicata.

The state contends that habeas corpus claims should be dismissed

because they fail to state a claim. I consider each argument

separately.

A. § 1983 Claims.

The state relies on records concerning other court actions

Stone has filed against several of the defendants and argues that

his § 1983 claims are barred by the doctrine of res judicata.

Ordinarily, I would treat the state's motion as a motion for

summary judgment because it relies upon state court records in

another action. See Concordia v. Bendekovic,

(11th Cir. 1982). However, plaintiff has not disputed the

accuracy or completeness of the state court records. It is

appropriate therefore to take judicial notice of the state court

proceedings and to resolve the matter now. See D'Amario v.

Butler Hosp.,

(1st Cir. 1990) (in ruling on motion

to dismiss on grounds of res judicata, judicial notice was

properly taken of prior state court proceedings), cert, denied,

111 S. C t . 2840 (1991); E.I. du Pont de Nemours & Co. v. Cullen,

(1st Cir. 1986) (judicial notice could be taken of

a complaint filed in state court action where a copy of the

complaint was contained as an appendix in a brief filed in

5 federal district court and neither party disputed its

authenticity). But cf. Cooperativa de Ahorro v Credito Aquada v.

Kidder, Peabody & Co., No. 92-2148, slip op. at 6-7 (1st Cir. May

19, 1993) (district court's reliance on articles in the national

press, submitted by neither party, in ruling on motion to dismiss

was not within the scope of judicial notice because the accuracy

of the facts, in part, could not be readily determined by resort

to sources whose accuracy could not be reasonably questioned).

The records submitted by the state demonstrate that Stone

raised and lost a § 1983 claim on identical grounds in state

court. Specifically, in Stone v. Adult Parole Board, et al..

No. 90-E-00075-B, which was filed in Merrimack County Superior

Court, Stone raised identical § 1983 claims. This action was

dismissed in orders issued by Judges Manias and Dunn dated August

31, 1990 and January 9, 1991, respectively. Moreover, in an

order dated May 17, 1991, the New Hampshire Supreme Court

declined to accept Stone's appeal from those orders. Thus, Stone

has already litigated the same issues he raises here in an

unsuccessful state court action.

The United States Supreme Court has determined that a state

court judgment has the same claim preclusive effect in federal

court as the judgment would have in the state court where the

6 original judgment was obtained. Miqra v. Warren City School

Dist. Bd. of Educ.,

(1984) (citing

); Allen v. McCurry,

(1980). This general

rule applies with egual force to § 1983 claims. Miqra,

; Pasterczyk v. Fair,

(1st Cir. 1987).

There is nothing unusual in the way in which New Hampshire

courts apply the doctrine of res judicata. See generally

Schwartz v. New Hampshire P e p 't of Revenue Admin.,

(1992); Marston v. United States Fidelity & Guar. Co . ,

(1992). Since Stone litigated to a final

judgment the same claims he raises in this action. New Hampshire

law would prevent him from relitigating his claims in the state

courts. Moreover, Stone's complaint in this case and his

objection to the state's motion to dismiss are devoid of any

suggestion that the state courts were an inadeguate forum for the

litigation of his § 1983 claims. Accordingly, he is barred from

raising these claims here by the doctrine of res judicata.

B. Habeas Corpus Claims

Construing Stone's complaint broadly, it appears to raise

the following issues:

(1) Did the Parole Board's August 24, 1989 decision rescinding Stone's parole implicate a constitutionally protected liberty interest? If so, was he afforded all

7 the constitutionally required procedures when the Board rescinded its order approving Stone for parole?

(2) Did the Prison Disciplinary Board's September 6 , 1989 decision finding Stone guilty of a major disciplinary infraction implicate a constitutionally protected liberty interest? If so, was that interest improperly infringed by (i) denying him the right to confront and examine the technician who performed the drug test; (ii) denying him an opportunity to challenge other alleged deficiencies in the prison's case, such as chain of custody; and (ill) finding him guilty of a disciplinary infraction based solely on the results of a drug test?

(3) Did the Parole Board's December 15, 1989 decision declining to consider Stone for parole implicate a constitutionally protected liberty interest? If so, was that interest improperly infringed when the Board declined to consider him for parole until he was transferred first to MSU and later to the halfway house in view of the fact that Stone would have to cut his hair to be eligible for transfer to either facility?

I am unable to answer any of these questions on the present

record. Accordingly, pursuant to Rule 7 of the Federal Rules

governing Section 2254 cases, I direct the state to expand the

record by filing on or before June 15, 1993 an indexed appendix

containing the following materials:

(1) the statutes, regulations and policies affecting (i) the Parole Board's August 26, 1989 decision revoking Stone's parole; (ii) the September 6, 1989 Prison Disciplinary Board decision finding Stone guilty of a major infraction; and (ill) the Parole Board's December 15, 1989 decision denying Stone parole;

(2) all records relating to the August 24 and December 13, 1989 decisions of the Parole Board; (3) All records relating to the September 6, 1989 decision of the Disciplinary Board;

(4) a copy of the Prison's 1989 rules governing the hair length of inmates;

(5) an affidavit from the Chairman of the Prison Disciplinary Board or another suitable official explaining the Board's decision to deny Stone the right to guestion the technician and to challenge matters such as chain of custody and the validity of the test at his disciplinary hearing; and

(6) an affidavit from a suitable prison official explaining the rationale for the prison's hair length policy.

At the same time, the state shall file a memorandum of not

more than 25 pages addressing each of the issues identified in

this order. The state shall consider the applicability or

inapplicability of the following decisions in addition to those

decisions cited by the state in support of its motion to dismiss:

Brennan v. Cunningham,

(1st Cir. 1987); Olim v.

Wakinekona,

(1983); Kentucky P e p 't of

Corrections v. Thompson,

(1989); Bowser v.

Vo s e ,

(1st Cir. 1992); Lanier v. Fair,

(1st Cir. 1989); Perveler v. Estelle,

(9th Cir. 1992); Inmates of Orient Correctional Inst, v.

Ohio State Adult Parole Auth.,

(6th Cir.

19 91); Ponte v. Real,

(1985); Smith v. Massachusetts

D e o 't of Corrections,

(1st Cir. 1990);

9 Koenig v. Vannell,

(9th Cir. 1992); Sence v.

Farrier,

(8th Cir. 1986); Howard v. Dept, of

Corrections, No. 91-1687, 1992 U.S. A p p . LEXIS 26660 (9th Cir.

October 13, 1992); McCormack v. Cheers, No. 90 Civ. 7430,

(S.D.N.Y. July 9, 1993); Soto v. Lord,

(S.D.N.Y. 1988).

The plaintiff shall file any additional documents in support

of his position and a memorandum responding to the state's

memorandum on or before July 1, 1993. After reviewing the

additional materials and memoranda, I will determine whether an

evidentiary hearing will be necessary to resolve the remaining

issues.

III. CONCLUSION

Defendant's Motion to Dismiss (document no. 25) is granted

in part and denied in part: Stone's § 1983 claims are dismissed

and the state's reguest to dismiss Stone's habeas corpus claim is

denied. Since all that remains is the resolution of Stone's

habeas corpus claims, he is not entitled to a jury trial.

Accordingly, the case shall be removed from the jury list.

10 SO ORDERED.

Paul Barbadoro United States District Judge

June 1, 1993

cc: James S. Clark-Dawe, Esq. Geoffrey J. Ransom, Esq.

11