Rowe v . Hillsborough County HOC CV-98-449-SD 11/09/98 X UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

David B . Rowe

v. Civil N o . 98-449-SD

Hillsborough County House of Corrections, et a l .

REPORT AND RECOMMENDATION

Pro se plaintiff David B . Rowe is a prisoner incarcerated at

the Hillsborough County House of Corrections (“Hillsborough

HOC”). He brought this civil rights action in forma pauperis,

claiming that several of his constitutional rights were violated

when his personal property was confiscated as punishment for his

request for medication. His complaint is before me for

preliminary review, to determine whether this action may proceed.

See United States District Court for the District of New

Hampshire Local Rule (“LR”) 4.3(d)(2); see also 28 U.S.C. § 1915A (a). As explained more fully below, I recommend that this action

be dismissed for failing to state claims upon which relief may be

granted. See LR 4.3(d)(2)(A)(i); 28 U.S.C. § 1915A(b)(1).

Discussion

Generously construing the complaint in plaintiff’s favor and

accepting all the allegations asserted therein as true, see Ayala

Serrano v . Lebron Gonzalez,

, 15 (1st Cir. 1990)

(following Estelle v . Gamble,

7 , 106 (1976) to construe pro se pleadings liberally in favor of that party); Aulson v . Blanchard,

, 3 (1st Cir. 1996) (stating the “failure to state a claim” standard of review), plaintiff tells the following story in support of his claims. On June 2 7 , 1998, he asked to be released from his cell to receive some medication, which the guard refused to allow him to do. Plaintiff challenged the guard’s contention that inmates had to sign-up prior in order to be released from their cells for medical purposes. In response to plaintiff’s challenge that such sign-ups are not standard procedure, plaintiff was placed in “lock down” in his cell, and then later that day removed to 24 hour punitive segregation. During the transfer, his laundry, bible, and legal papers were taken out of his cell and put in the “property office.” Both actions were taken without first giving plaintiff an administrative hearing. Despite several requests for his personal property, plaintiff did not receive it until July 7 , 1998.

This loss of property allegedly caused plaintiff a great deal of personal stress. He requested medical attention for that anxiety on July 3 , but no one came. On July 6 he was asked whether he was suicidal, but plaintiff said he was not. In this complaint, however, plaintiff contends that the eleven day loss of his personal property caused him emotional stress, mental

2 anguish, depression, anxiety, and great humiliation (because he

did not have clean laundry during that period).

Based on these facts, plaintiff claims his rights under the

First, Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth

Amendments have been violated. The gravamen of his complaint,

however, is that this loss of property: (1) denied him of his

right to access the courts; (2) constituted cruel and unusual

punishment, and (3) was done without due process of law.

Plaintiff also asserts that he was mistreated because he is

black, in violation of the equal protection clause. None of the

alleged deprivations, however, rises to the level of a

constitutional violation to support his claims for relief under

, § 1985 or § 1988.

(1) Right to Access the Courts.

Plaintiff contends that the eleven day loss of his legal

papers prevented him from “communicating with the court,” but not

that any adverse court action occurred as a result. Although

plaintiff enjoys a fundamental right to access the courts

protected by the First and Fourteenth Amendment, see Bounds v .

Smith,

1 7 , 821 (1977); Carter v . Fair,

(1st Cir. 1986), that right is not violated unless and until

the denied access to the courts hindered his efforts to purse a

legal claim. See Lewis v . Casey,

, 3 5 1 , 355 (1996).

3 “The tools [Bounds] requires to be provided are those that the

inmates need in order to attack their sentences, directly or

collaterally, and in order to challenge the conditions of their

confinement.”

An alleged inability to “communicate” with

the court for eleven days does not show, or even suggest, that

plaintiff was actually injured, by way of a lost motion, missed

filing deadline, or some other adverse consequence, in any court

proceeding plaintiff may have had pending. Moreover, when, as

here, the restricted access to his legal materials was reasonably

related to a legitimate disciplinary goal, there is no cognizable

constitutional deprivation. See

at 361-62 (citing Turner v .

Safley,

8 , 89 (1987) to explain why deference to local

authorities regarding prison administration is appropriate).

Accordingly, I find that plaintiff has not stated a viable denial

of access to the courts claim. See id.

(2) Right to be free from Cruel and Unusual Punishment.

Plaintiff’s contentions under the Eighth Amendment focus

both on the alleged denial of medication and on the mental

anguish he endured while deprived of his laundry. Neither

contention demonstrates the requisite “sufficiently serious”

misconduct inflicted by a prison official with “deliberate

indifference” to plaintiff’s needs to rise to the level of “cruel

and unusual punishment” protected by the Eighth Amendment. See

4 Wilson v . Seiter,

9 4 , 2 9 8 , 303 (1991) (holding that an

Eighth Amendment claim has both an objective and a subjective

component).

Plaintiff’s claims of denied medical care fail to show any

reckless, callous, or deliberate indifference to his mental or

physical health. Based on the allegations in the complaint, he

was denied just one dosage of medication, with apparently n o , or

only a depreciable, effect on him. Similarly, though he asked

for a psychiatrist, the nurse told him one would not be available

for three days. On that day, plaintiff was asked whether he was

suicidal, and he responded that he was not. No psychiatrist

visited plaintiff. Failing to provide psychiatric services for

an inmate who is simply “stressed out” because he does not have

clean laundry does not approach the level of knowing, deliberate

indifference to his serious medical needs required for an Eighth

Amendment violation. See Watson v . Canton,

3 7 , 540

(1st Cir. 1993) (holding that deliberate indifference to serious

medical needs requires wantonness or recklessness in the criminal

law sense, not merely failure to provide adequate medical care);

see also DesRosiers v . Moran,

5 , 18-19 (1st Cir. 1991)

(applying Wilson’s objective/subjective test to a claimed denial

of medical care).

Similarly, plaintiff’s assertion that the missing laundry

5 constituted “cruel and unusual punishment” falls short of the

mark. While being deprived of clean laundry understandably could

have been very upsetting to plaintiff, and may in fact caused him

sincere anxiety, stress and humiliation, it does not approach the

requisite “‘unnecessary and wanton infliction of pain,’” nor does

it appear to defy “contemporary standard[s] of decency” such that

“the minimal civilized measure of life’s necessities” were denied

him, to invoke the protections of the Eighth Amendment. Rhodes

v . Chapman,

3 7 , 346 (1981) (quotation omitted). Eleven

days without clean laundry may not be comfortable, but it simply

is not inhumane. See Farmer v . Brennan,

(1994)

(citing Rhodes,

)); see also Lewis,

(explaining how the Constitution does not require court to

become embroiled in the details of prison administration).

I conclude, therefore, that the complaint fails to state a

claim for an Eighth Amendment violation and recommend that

plaintiff’s § 1983 and § 1985 claims based thereon be dismissed.

(3) Right to Due Process of Law.

While not explicitly articulate, generously reading the

facts in plaintiff’s favor, the complaint may be construed as

raising due process claims based on his move to punitive

segregation prior to receiving a hearing and on his loss of

property. Both contentions, however, fail to state a due process

6 claim actionable under § 1983 or § 1985.

Disciplinary transfers need not be accompanied by notice or

a hearing, even if done in violation of prison regulations. See

Sandin v . Conner, __ U.S. __, 115 S . C t . 2293, 2300 (1995)

(holding that the due process clause is not implicated unless the

challenged transfer “imposes [an] atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life”). Here, plaintiff does not even allege that prison

regulations required that he receive a hearing prior to his “lock

down.” Nor does he allege that the disciplinary segregation

adversely affected the length of his confinement. See id.

Quite simply, within the prison environment, there is nothing

“atypical and significant” about being in “lock down” for 24

hours. See e.g. Stokes v . Fair,

(1st Cir.

1986) (finding no constitutional liberty interest in being free

from administrative segregation or from other transfers within

the prison, for any reason or no reason at a l l ) . This claim,

therefore, does not rise to the level of a constitutionally

protected liberty interest.

Plaintiff’s loss of property claim fails, both because the

property was returned to him after only eleven days, and because

New Hampshire law provides remedies to him to recover any damages

sustained. See Zinermon v . Burch,

(1990)

7 (holding that the constitutional deprivation actionable under §

1983 is not complete unless and until the state fails to provide

due process); Lowe v . Scott,

(1st Cir. 1992)

(holding that adequate state remedies preclude a § 1983 action to

redress lost property); see also N.H. Rev. Stat. Ann. 28:16

(1988) (providing a statutory right to pursue claims against

county officials).

As plaintiff has not averred facts to support either a

liberty or a property deprivation without due process of law, I

find that his alleged due process deprivations fail to state a

claim upon which relief may be granted and recommend that they be

dismissed.

(4) Right to Equal Protection.

Although plaintiff asserts that he was mistreated because he

is black, which is a suspect class protected by the equal

protection clause of the Fourteenth Amendment, see Yerardi’s

Moody S t . Restaurant & Lounge v . Bd. of Selectmen,

9 ,

94 (1st Cir. 1991) (explaining how the equal protection clause

protects suspect classes from inequitable governmental

treatment), he has failed to allege sufficient facts to support a

claim upon which relief may be granted for a violation of his

equal protection rights. Plaintiff fails to state a single fact

which substantiates his bald allegation that he was placed in

8 lock-down and deprived of his personal property because he is

black. Bald allegations are insufficient, without more, to state

a viable civil rights claim. See Roth v . United States,

(1st Cir. 1991) (requiring plaintiff to present either

direct or inferential factual allegations regarding “each

material element necessary to sustain recovery” (quotation

omitted)); see also Dewey v . University of N.H.,

, 3

(1st Cir. 1982), cert. denied,

(1983) (requiring

plaintiff allege the minimal facts necessary to substantiate a

civil rights claim); Brown v . Zavaras,

6 7 , 972 (10th

Cir. 1995) (“[E]ven pro se litigants must do more than make mere

conclusory statements regarding constitutional claims.”

(citations omitted)). Based on my review of the complaint, which

fails to document a single incident of racial animus towards

plaintiff, I conclude that plaintiff’s racial discrimination

claim is merely conclusory and fails to state an equal protection

violation.

(5) The Other Constitutional Rights.

Finally, plaintiff also states, without alleging any facts

in support of the assertions, that his Fourth, Fifth, Sixth and

Thirteen Amendment rights were violated by the lock down and lost

personal property. Although plaintiff asserts that his property

was unlawfully taken, “the Fourth Amendment proscription against

9 unreasonable searches does not apply within the confines of the

prison cell.” Hudson v . Palmer,

1 7 , 526 (1984). The

complaint, therefore, does not give rise to a Fourth Amendment

claim. See id. at 527-28 (requiring that an inmate’s expectation

of privacy yield to institutional security concerns). Nothing

alleged, or reasonably inferred from the allegations made,

supports a claim for a Fifth, Sixth or Thirteenth Amendment

violation. Accordingly, I recommend that plaintiff’s alleged

deprivations of his Fourth, Fifth, Sixth and Thirteenth Amendment

rights be dismissed for failing to state a claim upon which

relief may be granted.

Conclusion

For the reasons explained above, I recommend that

plaintiff’s complaint (document n o . 1 ) be dismissed for failing

to state a claim upon which relief may be granted. See 28 U.S.C.

§ 1915A(b)(1); see also LR 4.3(d)(2)(A)(i). A dismissal based on

this Report and Recommendation will count as a “strike” against

plaintiff, pursuant to

(g).

Any objections to this report and recommendation must be

filed within ten days of receipt of this notice. Failure to file

an objection within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law

10 Committee v . Gordon,

1 , 13-14 (1st Cir. 1992); United

States v . Valencia-Copete,

, 6 (1st Cir. 1986).

James R. Muirhead United States Magistrate Judge

Date: November 9, 1998

cc: David B . Rowe, pro se

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