Voight v. NH Dept, of Corrections CV-98-042-M 05/28/99 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Robert Voight

v. Civil No. 99-042-M

New Hampshire Dept, of Corrections, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff, Robert Voight, presently incarcerated at

New Hampshire State Prison ("NHSP"), brought this action in forma

pauperis pursuant to

for denial of his rights of

release on parole and access to the courts. He seeks punitive

and compensatory damages against the defendants individually and

in their official capacities, as well as an injunction to bar

retaliation against him in the future. Plaintiff's Complaint

(document no. 1) is before me for initial review pursuant to 28

U.S.C. § 1915A(a) and U.S. District Court for the District of New

Hampshire Local Rule 4.3(d)(2). For the reasons stated below, I

recommend that plaintiff's claims be dismissed.

BACKGROUND

Plaintiff was convicted of arson and fraud in 1995. He was

sentenced to prison and ordered to pay restitution. On February

9, 1998, the New Hampshire Adult Parole Board ("NHAPB") found

that plaintiff met the criteria for parole and was entitled to be

granted parole on April 29, 1998. Plaintiff, however, was not

released in April 1998, due to the amount of restitution still owed and the fact that he received only a small pension and had

neither obtained employment nor Social Security benefits to

provide the necessary income to pay his restitution obligation.

Using NHSP Inmate Reguest Slips, plaintiff notified

defendants John Eckert, Executive Assistant of the NHAPB, Henry

Risley, Commissioner of NHSP, and Michael Cunningham, NHSP

Warden, that defendant Tina Guerin, a parole officer, had

improperly calculated the amount of restitution1 and, as a

result, he was being erroneously incarcerated. Defendants failed

to investigate his allegations, correct the restitution

calculation, or release him from incarceration.

Plaintiff also notified defendant George B. Waldron, Esq.,

Grafton County Assistant Attorney, and defendant John Vincent,

Department of Corrections' ("DOC") attorney, of these alleged

violations of his civil rights. These defendants also failed to

investigate his allegations or take any action to secure his

release from incarceration.

Plaintiff next filed a "Motion to Determine Amount of

Restitution" with his sentencing court. New Hampshire Superior

Court Judge Edward Fitzgerald, III, also a defendant in this

action, denied plaintiff's motion. As a result, plaintiff filed

1 Authority to impose restitution comes from N.H. Rev. Stat. Ann. ("RSA") 651:63(1)(1998), which provides in relevant part: "any offender may be sentenced to make restitution in an amount determined by the court." a habeas petition in state court. A hearing was granted on July

10, 1998 before another New Hampshire Superior Court judge and

also a defendant here. Judge Kathleen McGuire. Judge McGuire

allowed plaintiff only 10 minutes to present his case, and then

denied his petition. Plaintiff filed a second habeas petition in

state court. At a hearing held on October 10, 1998, Judge

McGuire only considered the claim based upon the Superior Court's

denial of his Motion to Determine Restitution. She refused to

overturn the sentencing court's decision, indicating that

plaintiff was free to file a Motion for Reconsideration with the

Superior Court and appeal any adverse decision received to the

New Hampshire Supreme Court. Plaintiff has since filed the

recommended motion.

At some later unspecified date, the NHAPB held a hearing to

ascertain why plaintiff had not been released on parole.

Defendants Thomas Winn, Robert Hamel, Amy Vorenberg, and Larry

Nice were present, as was plaintiff. Defendant Eckert presented

to the board the improperly calculated restitution information,

as well as other erroneous information generated by Guerin in her

pre-parole investigation, and the results of plaintiff's habeas

petitions. Plaintiff decided not to specifically challenge

Eckert's allegations before the board, instead inguiring whether

the defendants at this hearing were aware that they were

3 violating his constitutional rights. The board members indicated

that, to be released on parole, plaintiff must either obtain a

job or be receiving Social Security benefits. Since he met

neither condition, plaintiff's parole was denied. The board

members failed to investigate his allegations any further or

secure his release from incarceration.

Plaintiff filed this Complaint on February 3, 1999. He

asserts that the defendants' actions clearly demonstrate

violations of his Constitutional rights to due process and egual

protection under the Fourteenth and Fifth Amendments, as well as

his right to access the courts. He further alleges these actions

clearly indicate a conspiracy and intentional malice by all

defendants.

DISCUSSION

At this preliminary stage of review, I generously construe

the complaint in plaintiff's favor, see Estelle v. Gamble,

(1976), and accept as true the factual allegations

made therein. See Aulson v. Blanchard,

(1st Cir.

1996). The complaint can only be dismissed for failure to state

a claim if it appears beyond a doubt that no set of facts can be

proven which would entitle the plaintiff to relief. See

For the reasons that follow, I find that plaintiff fails to state

a claim for which relief may be granted.

4 I. Threshold Issues

A. Injunctive Relief

Plaintiff requests the named defendants be enjoined from

future retaliation against him because of his legal activities.

Specifically, he seeks an injunction to prevent unwarranted

transfers, strip searches, shakedowns, excessive urine testing,

disciplinary actions, and loss of privileges in the future.

Federal courts only have jurisdiction over present, or live cases

and controversies, see U.S. Const. Art. Ill, § 2, which involve

ripe issues. See Gildav v. Dubois,

(1st Cir.

1997) (explaining ripeness). General concerns that illegal

conduct will occur in the future do not render a case ripe. See

O'Shea v. Littleton,

(1974). In cases

requesting injunctive relief relating to conditions of

confinement, plaintiff must establish that he has sustained or is

in immediate danger of sustaining some direct injury as a result

of the challenged official conduct. See City of Los Angeles v.

Lyons,

(1983); see also O' Shea,

-94 .

Plaintiff alleges no facts indicating that defendants have

retaliated against him. Nowhere in his 95-page complaint does

plaintiff indicate any factual basis for his belief that he is in

5 immediate danger of sustaining injury from retaliatory acts.

Therefore, I recommend dismissal of plaintiff's claims for

injunctive relief as unripe.

II. Remaining Claims

The gravamen of this civil rights action is plaintiff's

challenge to the denial of parole. He contends that denying him

parole has violated his due process rights. There is, however,

no Constitutional or inherent right to parole. See Hewitt v.

Helms,

(1983). A liberty interest protected by

the due process clause may arise from the laws or regulations of

a state, see

(finding Pennsylvania regulation

governing administration of state prison conferred liberty

interest protected under the Fourteenth Amendment); see also

Meachum v. Fano,

(1976) (indicating liberty

interest in prison transfer may be created by state law), when

such laws place substantial limitations on official discretion in

the parole decision. See Olim v. Wakinekona,

(1983). When state law provides specific conditions which, if

met, entitle an inmate to parole, that law can create a protected

liberty interest in parole.

New Hampshire law has not created a liberty interest in

parole protected by the due process clause. See Bussiere v.

6 Cunningham,

(N.H. 1990) (construing the parole

statute, RSA 651-A:6, and the accompanying parole board rules, as

not creating an automatic right to parole or any other liberty

interest); see also Baker v. Cunningham,

(N.H.

1986)(same); see also Stone v. Hamel, No. CIV. 91-385-B,

, at *1 (D.N.H. April 8, 1994)(same); see generally

Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,

(1979). The NHAPB is granted broad discretion

regarding the grant of parole. See Knowles v. Warden,

(N.H. 1995). This broad discretion includes the ability

to place reguirements, such as obtaining employment or Social

Security benefits, on plaintiff prior to granting parole. See

Cable v. Warden, New Hampshire State Prison,

(N.H. 1995); see also RSA 651:63(11)(Supp. 1998) (restitution may

be a condition of probation or parole). Under New Hampshire law,

parole is a privilege, not a right, see Knowles,

,

and plaintiff's interest in the grant of parole, while

constituting a hope, does not rise to the level of a

constitutionally protected right. See

.

Since plaintiff does not have a constitutionally protected

liberty interest in the grant of parole, he cannot state a § 1983

claim for a due process violation based thereon. Accordingly, I

recommend that his due process claim be dismissed for failing to

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

1915A(b) (1); see also LR 4.3(d) (e) (A) (1) .

Ancillary to his parole claim is plaintiff's claim that he

has been denied access to the courts. He contends that the

limited time allocated to him during hearings and the adverse

rulings on his various motions constitute denials of his right to

access the court. Inmates are guaranteed adeguate, effective,

and meaningful access to the courts. See Lewis v. Casev,

(1996) (finding protected right of inmates to

present claims to court relating to conviction or conditions of

confinement); see also Bounds v. Smith,

(1977) .

There is, however, no constitutional guarantee to a favorable

outcome or to a hearing of a particular duration. While prison

authorities are reguired to assist inmates in the preparation and

filing of meaningful legal papers, see Bounds,

,

it is clear from plaintiff's references to his attorney, his

motions, and his habeas petitions that plaintiff is not being

denied meaningful access to the courts. I, therefore, also

conclude that plaintiff has failed to state a claim for the

denial of his right to access to the courts.

Plaintiff seeks to assert claims based on an alleged

conspiracy to violate his civil rights, and on violation of his

state constitutional rights. Bald allegations of a conspiracy,

8 however, without facts demonstrating a constitutional violation,

fail to state a claim under either

or § 1986.

Moreover, plaintiff has failed to state any federal claims upon

which relief may be granted. I recommend that the court decline

to exercise supplemental jurisdiction over his state

constitutional claims. See

(c) (3) .

CONCLUSION

As explained more fully above, I find that plaintiff has

failed to state any claims upon which relief may be granted. See

28 U.S.C. § 1915A(b)(1). I, therefore, recommend that the

complaint be dismissed. See LR 4.3(d)(2)(A)(1). If approved,

the dismissal will count as a strike against the plaintiff under

(g).

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court's order. See Unauthorized Practice of

9 Law Committee v. Gordon,

(1st Cir. 1992);

United States v. Valecia-Copete,

(1st Cir. 1986) .

James R. Muirhead United States Magistrate Judge

Date: May 28, 1999

cc: Robert Voight, pro se

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