Hurley v. Messenger CV-97-13-SD 06/24/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas S. Hurley, Jr.

v. Civil No. 97-13-SD

Lance Messenger, et al

O R D E R

Thomas Hurley has objected to a Report & Recommendation

(R & R) of the magistrate judge. Document 11. The R & R

suggests dismissal of the complaint with the exception of an

Eighth Amendment claim against three defendants. Document 9.

The court has conducted the reguisite de novo review of the

R & R.

(b)(1)(C); Elmendorf Grafica, Inc. v. D.S.

America (East), Inc.,

(1st Cir. 1995).

1. Background

Hurley is currently an inmate at the New Hampshire State

Prison (NHSP). Claiming violation of his civil and

constitutional rights based on perceived deprivation of medical

care, he has here sued a number of defendants, including Superior

Court Justice Dalianis, Commissioner of Corrections Paul Brodeur,

and New Hampshire Parole Board Members Robert F. Hamel, John

Eckert, and E. Leonard Zeifert, together with NHSP employees Lance Messenger, Anne Melvin, Wayne Brock, Paul McAuliffe,1 Roman

Aquizap, Dr. Fellows, and Irene Lavois. The thrust of

plaintiff's complaint is that he has been unlawfully denied

participation in a mental health sex offender program (SOP)

necessary for parole.

On reference to the magistrate judge, the matter was

reviewed, and the challenged R & R issued. The magistrate judge

recommended dismissal as to the defendants Dalianis, Hamel,

Eckert, and Zeifert on the ground of absolute immunity, and

dismissal on other grounds as to all remaining defendants except

Messenger, McAuliffe, and Aquizap.

2. Discussion

a. Absolute Immunity

The magistrate judge ruled that the state court judge and

the parole board members were entitled to dismissal on the

grounds of absolute immunity. Plaintiff's objection is that the

judge's order that he complete an SOP plan somehow violated his

rights to equal protection. As the order neither burdens a

fundamental right nor targets a suspect class, and as it bears a

1The complaint spells the name of this defendant as "Mculff", but in its acceptance of service (document 13), the Office of the New Hampshire Attorney General spells it as "McAuliffe", and the court accordingly adopts the latter spelling.

2 rational relation to a legitimate end, Romer v. Evans, ___ U.S.

, ___ , 116 S. C t . 1620, 1627 (1996), it is not violative of

the Equal Protection Clause. And as the order was issued in the

course of judicial proceedings, the judge is entitled to absolute

immunity. Stump v. Sparkman,

(1978).

Similarly, it is well established that parole board members

enjoy absolute immunity from civil liability when performing

their quasi-judicial functions. Johnson v. Rhode Island Parole

Bd. Members,

(1st Cir. 1987). Accordingly, the

magistrate judge did not err in recommending dismissal of the

complaint as to Judge Dalianis and defendants Hamel, Eckert, and

Zeifert.

b. Eighth Amendment

The magistrate judge ruled that, fairly and liberally read,

plaintiff's complaint stated an Eighth Amendment cause of action

only against defendants Messenger, McAuliffe, and Aquizap.

Similarly read by the court, this ruling is correct.

It is well established that the Eighth Amendment applies to

cases where prison officials demonstrate "deliberate

indifference" to the serious medical needs of prisoners. Helling

v. McKinney,

(1993); Mahan v. Plymouth Countv

House of Corrections,

(1st Cir. 1995) . And

3 "deliberate indifference" equates with subjective awareness on

the part of the prison official of an obvious, substantial risk

to an inmate's safety. Farmer v. Brennan,

(1994) .

As illuminated by the R & R, defendants Melvin, Brock,

Fellows, and Lavois, together with defendant Brodeur,2 exerted

efforts designed to assist rather than harm the plaintiff. That

these efforts might not have been as successful as plaintiff

wished does not mean that they can be considered as deliberately

indifferent to his needs. Where efforts are made to furnish

medical care, there can be no claim for deliberate indifference.

Harris v. Thigpen,

(11th Cir. 1991)

(collecting cases).

c. Due Process and Equal Protection

The magistrate judge ruled that the complaint does not

support violation of plaintiff's substantive or procedural due

process rights. To succeed on a substantive due process claim,

there must be conduct which "'shocks the conscience' or is

2In Brodeur's case, the magistrate judge correctly held that the allegations of the complaint failed to support a claim that Brodeur did not adequately train his staff or that he was otherwise deliberately indifferent to Hurley's mental health problems. See Monell v. Department of Social Servs.,

(1978); Bowen v. Citv of Manchester,

(1st Cir. 1992).

4 otherwise offensive to the 'concept of ordered liberty,'" Baker

v. McCollan,

(1979) (Blackmun, J., concurring)

(internal quotation omitted). Otherwise put, such conduct must

be violative of "'principles of justice so rooted in the

conditions and conscience of our people as to be ranked as

fundamental,'" Abany v. Fridovich,

(D.

Mass. 1994) (quoting Snyder v. Massachusetts,

(1934)). Denying a prisoner multiple chances to complete a

rehabilitation program does not fall within the penumbra of a

subjective due process violation.

And absent a showing of deprivation of a liberty interest

sourced in the due process clause itself or the laws of the

states, Kentucky Pep't of Corrections v. Thompson,

(1988), there is no procedural due process violation.

Inmates of New Hampshire prisons have no constitutionally

protected liberty interest in parole, Wellington v. Corrections,

No. 96-189, slip op. at 4-5 (D.N.H. Dec. 30, 1996), and as

plaintiff has no liberty interest in parole. Stone v. Hamel, No.

91-386, slip op. at 3 (D.N.H. Apr. 8, 1994), he cannot succeed on

a claimed liberty interest in unlimited chances at satisfying a

condition of parole. Sandin v. Conner, ___ U.S. ___ , , 115

S. C t . 2293, 2300 (1995).

Moreover, even were such liberty interest found to exist.

5 plaintiff's complaint, liberally and fairly read, fails to

suggest a due process violation. His multiple opportunities to

complete the SOP, his apparent completion of a different program,

and his recent evaluation by prison officials regarding his

ability to adhere to a rehabilitation program strongly belie any

such claim.

Finally, the complaint of homosexual discrimination does not

here serve to support a claim of denial of egual protection.

Again, there is no showing in the complaint that the challenged

action either burdens a fundamental right, targets a suspect

class, or bears no rational relation to a legitimate end. Romer

v. Evans, supra. Nor do the alleged facts show plaintiff to have

been the victim of invidious discrimination which would warrant

constitutional protection. Moreover, the alleged reason for

denial of parole--continued deviant sexual misconduct--advances

the legitimate state interest in protection of the public. New

Hampshire Revised Statutes Annotated 651-A:1.

3. Conclusion

For the reasons hereinabove outlined, the court overrules

the plaintiff's objection to the R & R and finds that the

magistrate judge correctly recommended dismissal of all claims

except those under the Eighth Amendment directed at defendants

6 Messenger, McAuliffe, and Aquizap. The R & R is accordingly

accepted without modification.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 24, 1997 cc: Thomas S. Hurley, Jr., pro se Suzanne M. Gorman, Esq.

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