Boulanger v . NH Dep't of Corr CV-95-572-SD 03/10/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gerard Boulanger

v. Civil N o . 95-572-SD

Paul Brodeur, Commissioner, New Hampshire Department of Corrections; Michael J. Cunningham, Warden, New Hampshire State Prison

O R D E R

Gerald Boulanger, currently incarcerated at the New Hampshire State Prison (NHSP), brings this civil rights action against defendants Paul Brodeur, Commissioner of the New Hampshire Department of Corrections, and Michael J. Cunningham, Warden of NHSP. On May 1 4 , 1996, this court approved Magistrate Judge Muirhead's Report and Recommendation denying plaintiff's original motion for temporary restraining order and/or for preliminary injunction.

Presently before the court are defendants' motion to dismiss (document 20) and defendants' motion for partial summary judgment (document 2 0 . 1 ) . Plaintiff pro se objects to both motions. Also before the court is plaintiff's second motion for temporary restraining order and/or preliminary injunction (document 2 2 ) , to which defendants object. Background

On June 1 6 , 1996, defendant Cunningham issued a memorandum

stating the penalty for using drugs while in prison. Prison Drug

Standard (attached to defendants' answer as Exhibit A ) . The

memorandum stated, inter alia, that inmate drug use could result

in revocation of visitation privileges. Id. Such portion of the

memorandum read as follows: Effective immediately, any inmate found in possession of drugs, or whose urine test is positive for drugs, or who refuses to submit to a urine test and who has been found guilty at a disciplinary hearing, will have his visits suspended for one year.

Id.

On August 2 8 , 1995, Boulanger pled guilty to positive THC1

results on a urine test. Complaint ¶ 9. Boulanger was told that

the punishment for his guilty plea would be 100 hours of extra

duty, 50 days of loss of canteen time, and 10 days of punitive

segregation. Id. ¶ 8 . He was not told at the time he pled guilty that he would lose visiting privileges for one year. Id.

¶ 1 4 . He claims he was not aware that his visiting privileges

had been revoked until October 2 6 , 1995, when a friend wrote to

him stating that prison officials refused to allow her to visit

1 T H C stands for tetrahydrocannabinol, the active principle of marijuana. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 256, 1692 (28th ed. 1994).

2 with him two days prior. Id. ¶ 1 2 . On December 2 0 , 1995, the Prison Drug Standard was revised.

Revised Prison Drug Standard (attached to defendants' answer as

Exhibit B ) . The new standard changed the punishment for

violation of the standard from one year's revocation of visiting

privileges to one year's revocation of visiting privileges with

Category 2 visitors (friends) and 30 days' revocation of visiting

privileges with Category 1 visitors (parents, spouse, children,

siblings). Id.

The court assumes that Boulanger's punishment regarding

visitation was the following: revocation of Category 2 visits for

one year and revocation of Category 1 visits from August 2 8 ,

1995, to December 2 0 , 1995, when the standard was revised.

Discussion I. Motion for Judgment on the Pleadings2

A. Judgment on the Pleadings Standard Any party may move for judgment on the pleadings after the

pleadings are closed but within such time as not to delay the

trial. Rule 12(c), Fed. R. Civ. P. "The standard for evaluating

a Rule 12(c) motion for judgment on the pleadings is essentially

2 As defendants filed their motion to dismiss after filing an answer to the complaint, the court is treating same as a motion for judgment on the pleadings.

3 the same as the standard for evaluating a Rule 12(b)(6) motion."

Metromedia Steakhouses Co., L.P. v . Resco Management,

(D.N.H. 1994) (citation omitted). When reviewing either

type of motion, "the court must accept all of the factual

averments contained in the complaint as true and draw every

reasonable inference helpful to the plaintiff's cause." Sinclair

v . Brill,

4 , 46 (D.N.H. 1993) (citing Santiago de

Castro v . Morales Medina,

(1st Cir. 1991)).

Accord Rivera-Gomez v . de Castro,

3 1 , 635 (1st Cir.

1988).

Judgment may not be entered on the pleadings "'"unless it

appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief."'"

Rivera-Gomez, supra,

(quoting George C . Frey

Ready-Mixed Concrete, Inc. v . Pine Hill Concrete Mix Corp.,

5 1 , 553 (2d Cir. 1977) (quoting Conley v . Gibson,

1 , 45-46 (1957))).

B. Counts 1-5: Claims under

The section 1983 claims within the complaint allege that

defendants violated plaintiff's First, Eighth, and Fourteenth

Amendment rights. The magistrate judge has previously determined

that plaintiff's civil rights claims are premised on defendant's

4 (1) denial of plaintiff's visitation rights, (2) failure to

provide plaintiff with a copy of his disciplinary report, and (3)

failure to comply with required and dictated prison policies,

procedures, and directives. See Report and Recommendation at 1 ,

Apr. 2 2 , 1996.

1. The First Amendment

Boulanger claims that the revocation of his visiting

privileges for one year is a violation of his right to

association guaranteed by the First Amendment. "[A] prison

inmate retains those First Amendment rights that are not

inconsistent with his status as a prisoner or with the legitimate

penological objectives of the corrections system." Pell v .

Procunier,

1 7 , 822 (1974). Pell concerned a challenge

to the constitutionality of a prison regulation forbidding media

visits with specific inmates. The court found that while it

would be unconstitutional for prison officials to prohibit all expression or communication by inmates, "security considerations

are sufficiently paramount in the administration of the prison to

justify the imposition of some restrictions on the entry of

outsiders into the prison for face-to-face contact with inmates."

Id. at 827. The Court concluded that the prison regulation

restricting media visits did not violate the First Amendment as

5 applied to inmates. Id. at 827-28.

Under Pell, the NHSP may restrict Boulanger's constitutional

right of association as long as the purpose of the restriction is

reasonably related to the furtherance of legitimate correctional

objectives, such as security, or the maintenance of order, or

rehabilitation. See id. at 827. C f . Stow v . Grimaldi,

(1st Cir. 1993) (discussing constitutionality of

censoring prisoners' outgoing mail). Furthermore, courts shall

give great deference to the judgment of prison officials in

promulgating regulations to further these objectives. See Pell,

supra,

.

The court finds and rules that the suspension of visitation

privileges did not violate Boulanger's First Amendment rights.

The prison's policy on visits was obviously enacted in an effort

to curb known drug users' access to drugs. In a June 1 6 , 1995,

memorandum sent to the inmates about the drug policy, the warden

states that, based on his experience and investigation, he

concluded that when drugs are found inside the prison, they were

brought in through the visiting room. Thus, a rule suspending

visitation privileges of those found to be using drugs is both

reasonable and rationally related to the legitimate prison

objective of staunching the flow of drugs in through the prison

gates.

6 Boulanger argues, in essence, that the policy was arbitrary

or irrational as applied to him because he had not had a visit

"for months" prior to testing positive for drugs, and no hearing

officer had ever determined that he had received drugs from a

visitor. See Objection at 6. However, the court finds that when

the prison officials are accorded deference, the policy was

reasonably applied to Boulanger. Assuming, arguendo, that

Boulanger did receive the drugs from another inmate, it is

certainly reasonable for prison officials to seek to block other

avenues open to Boulanger to receive drugs. In addition, not

only was the policy reasonably related to a legitimate prison

objective, but it also left open alternative channels of

communication to Boulanger, such as the telephone lines and the

United States mail.

Accordingly, as no First Amendment right has been violated,

Boulanger's claims under the First Amendment are dismissed.

2. The Eighth Amendment

Boulanger also claims that the revocation of his visitation

privileges constitutes cruel and unusual punishment in violation

of the Eighth Amendment.

On this question, this court concurs with the conclusion of

the magistrate judge that "a restriction on visitation is not a

7 condition of confinement so reprehensible as to be considered inhumane under contemporary standards or one, for that matter, that deprives the plaintiff of a minimal civilized measure of the necessities of life." See Report and Recommendation, supra, at 9 (citing Hudson v . McMillian,

, 6 (1992); Wilson v . Seiter,

9 4 , 298 (1991)). See also Jackson v . Meachum,

7 8 , 585 (1st Cir. 1983) (holding that inmate denied contact with other inmates as a result of being placed in segregated confinement did not have an Eighth Amendment claim). Boulanger's deprivation of one year's visitation with friends and four months' visitation with family is hardly the type of extreme and extraordinary punishment that constitutes an Eighth Amendment violation. Furthermore, the facts also do not show that defendants acted with the requisite "deliberate indifference" to Boulanger's rights. Accordingly, Boulanger's claims under the Eighth Amendment are dismissed.

3. Fourteenth Amendment

Finally, Boulanger claims that prison officials violated his

due process rights by failing to notify him that his guilty plea

for drug use would result in a loss of visitation privileges for

one year; by failing to comply with required and dictated prison

policies, procedures, and directives (PPDs); and by failing to

8 provide him with a copy of his disciplinary report. The court

construes Boulanger's argument to be that his procedural due

process rights were violated.

In the Report and Recommendation addressing plaintiff's

request for a temporary restraining order, the magistrate judge

discussed at length Boulanger's procedural due process claim.

The magistrate judge found, and this court agrees, that plaintiff

has not demonstrated that he has a protected liberty or property

interest with which the state has interfered, a necessary

precondition to stating a procedural due process violation. See

Report and Recommendation, supra, at 6-8. Liberty interests can

derive either from the Due Process Clause itself or from the laws

of the states. Kentucky Dep't of Corrections v . Thompson,

5 4 , 460 (1989). The Supreme Court has specifically held

that an inmate's interest in visitation is not guaranteed by the

Due Process Clause. See id. at 460.

Boulanger argues that his visiting privileges are protected

by a liberty interest created by state regulations, including

PPDs. The inquiry into whether a state law conveys a liberty

interest upon a prisoner is now governed by Sandin v . Conner, ___

U.S. ___, 115 S . C t . 2293 (1995). In Sandin, the Court held that

state-created interests would be limited to freedom from

restraints which impose "atypical and significant hardship" on

9 the inmate in relation to the "ordinary incidents of prison

life." Id. at ___, 115 S . C t . at 2300. The court went on to

note that "discipline by prison officials in response to a wide

range of misconduct falls within the expected parameters of the

sentence imposed by the court." Id. at ___, 115 S . C t . at 2301.

No longer are prisoners encouraged to "comb regulations in search

of mandatory language in which to base entitlements to various

state-conferred privileges." Id. ___, 115 S . C t . at 2299.

Boulanger's loss of visitation for one year as punishment

for his drug use while incarcerated does not impose an "atypical

and significant hardship" upon him in relation to the ordinary

incidents of prison life such as to give rise to a protected

liberty interest. Boulanger's contact with members of the

community outside the prison walls was not completely restricted.

He was able to visit with family members after four months and

was able to maintain relationships with friends and family via

letter or telephone. This type of discipline for drug use

resides soundly within the "expected parameters" of Boulanger's

sentence. Indeed, courts have found, on much more sympathetic

facts, that the prisoner did not possess a liberty interest.

See, e.g., Dominique v . Weld,

(1st Cir.

1996) (finding that prisoner's removal from work release program

and transfer to medium security facility did not work atypical

10 and significant hardship on inmate so as to create liberty

interest).

Having found that Boulanger did not have a protected liberty

interest, the court need not determine whether he received the

process that was due him. Accordingly, the court finds and rules

that Boulanger's claims under the Fourteenth Amendment must be dismissed.3

C. Count 6: Claims under

4 1 , 242

Boulanger claims defendants violated

(conspiracy against rights of citizens) and

(deprivation of rights under color of l a w ) .

These provisions govern the institution of criminal

proceedings, but do not provide for a civil remedy. Thus they

do not give rise to a civil action for damages. See Cok v .

Cosentino,

, 2 (1st Cir. 1989). Accordingly,

Boulanger's claims under Count 6 of his complaint must fail.

II. Motion for Temporary Restraining Order and/or Preliminary

Injunction

3 The court further notes that, to the extent Boulanger argues that a liberty interest in visitation stems from the Laaman Consent Decree, the court finds that the drug policy as applied to plaintiff comports with the sections of the decree cited by defendants.

11 In his motion for temporary restraining order and/or

preliminary injunction, Boulanger claims prison officials have

been harassing him in retaliation for his filing suit against the

prison and have confiscated his legal materials. To the extent

Boulanger's motion was filed as part of his current suit against

the prison, it must be denied because the current suit is

disposed of by means of this order. To the extent the motion is

filed independently of the original suit against the prison, it

shall also be dismissed, without prejudice, pending Boulanger's

filing of a formal complaint against the prison alleging an

independent cause of action.

Conclusion

For the reasons set forth above, the court grants

defendants' motion for judgment on the pleadings (document 2 0 ) ,

but denies defendants' motion for partial summary judgment

(document 20.1) as moot. As to plaintiff's motion for temporary restraining order and/or preliminary injunction (document 2 2 ) ,

such motion is denied without prejudice. The clerk shall close

12 this case and enter judgment accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court March 1 0 , 1997

cc: Gerard J. Boulanger, pro se Martin P. Honigberg, Esq.

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