Duquette v. NH DOC 04-CV-281-SM 08/29/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Randy J. D u q u e t t e , Plaintiff

v. Civil No. 04-cv-281-SM Opinion No.

Les Dolecal, Acting Commissioner of the NH Department of Corrections and Jane Coplan, Warden, NH State P r i s o n , Defendants

O R D E R

Plaintiff, an inmate in the New Hampshire State Prison

("NHSP"), sues for declaratory and injunctive relief,

challenging, on First Amendment grounds, a "Classification

Authorization Decision" recommending that he participate in the

N H S P 's sexual offender program ("SOP"). Plaintiff characterizes

the SOP as a religious program that he may not lawfully be

compelled to attend. Before the court are summary judgment

motions from both parties. For the reasons given, defendants'

motion for summary judgment is granted and plaintiff's motion is,

necessarily, denied. Summary Judgment Standard

Summary judgment is appropriate when the record reveals "no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." F e d . R. C i v . P.

56(c). "The role of summary judgment is to pierce the

boilerplate of the pleadings and provide a means for prompt

disposition of cases in which no trial-worthy issue exists."

Quinn v. City of B o s t o n ,

(1st Cir. 2003) (citing

Suarez v. Pueblo Int'l, I nc..

(1st Cir. 2000)).

When ruling on a party's motion for summary judgment, the court

must view the facts in the light most favorable to the nonmoving

party and draw all reasonable inferences in that party's favor.

See Lee-Crespo v. Schering-Plough Del Caribe I nc..

(1st Cir. 2003) (citing Rivera v. P.R. Aqueduct & Sewers

A u t h .,

, 185 (1st Cir. 2003)).

Background

After a jury trial, plaintiff was convicted of six counts of

aggravated felonious sexual assault and one count of felonious

sexual assault. On June 13, 1997, he was sentenced to "not more

than 20 year(s), nor less than 10 year(s)" for his conviction in

2 96-S-281. He was also given three identical sentences in 96-S-

285, 287, and 288, to run concurrently with the sentence in 96-S-

281, a sentence of "not more than 20 year(s), nor less than 10

year(s)," in 96-S-282, to run consecutively to the sentence in

96-S-281, and a sentence of "not more than 20 year(s), nor less

than 10 year(s)," in 96-S-284, to run consecutively to the

sentence in 96-S-282, as well as a sentence of "not more than 7

year(s), nor less than 3 V2 year(s)," in 96-S-286, to run

concurrently with the sentence in 96-S-284.

According to the director of the SOP, given the length of

plaintiff's sentences, and the prison's policy of not admitting

an inmate into the SOP until he is within one or two years of his

minimum release date, plaintiff will not be eligible for

admission into the SOP until approximately 2024 or 2025. (Def.'s

Mot. Summ. J., Ex. 1 (McCormack Aff.) 5 5.) Plaintiff, in an

affidavit, challenges McCormack's assessment of his SOP

eligib i l i t y :

Despite the defendants' bald assertion that inmates are not admitted into the SOP until two years before their minimum parole date, I have personal knowledge of countless SOP graduates who entered the program with many more than two years left to serve on their

3 sentences. I am aware of no mandate preventing entry into the SOP until two years before the minimum sentence expires. So, any claim that I am not eligible for SOP admission for 20 years is contrary to historic SOP practices.

(Pl.'s O b j . to Summ. J., Ex. 1 (Duquette Aff.) 5 3.) Plaintiff

does not, however, identify any of the "countless SOP graduates

who entered the program with many more than two years left to

serve on their sentences." More importantly, it is undisputed

that plaintiff has neither participated in nor applied for

admission to the SOP, and it is beyond reasonable dispute that

plaintiff will not be eligible for release on parole for quite

some time.1 (Def.'s Mot. Summ. J., Ex. 1 (Lacasse Aff.) 5 6.)

Plaintiff was incarcerated immediately after he was

sentenced. On July 9, 2003, he appeared before a Department of

Corrections ("DOC") Classification Board. In a Classification

Authorization Decision dated July 31, 2003, the Board made the

following program assignments and recommendations: "Sex Offender

Program, Positive Connections." It is not clear from the record

1 It is true that to move from one sentence to a subsequent consecutive sentence, an inmate must be paroled from one to the next, but plaintiff is not even eligible for that form of parole until 2007.

4 precisely how these assignments and recommendations are

implemented or enforced. The prison's Sex Offender Program guide

provides that "[p]rogram participation is voluntary, however in

most cases men will not be paroled unless programming is

completed." (Defs.' Mot. Summ. J., Ex. 15 at 3.)

At the bottom of the Classification Authorization Decision

form issued to plaintiff, an appeal process is outlined:

If you disagree with this decision, you may appeal to the Warden on an Inmate Request Slip within fifteen days of receipt of this notice. If the appeal is denied at this level, you may appeal the decision to the Commissioner on an Inmate Request Slip within fifteen days of receipt of this denial. The Commissioner's decision is final. You may not appeal to the Commissioner until receiving a response from the Warden.

(Def.'s Mot. Summ. J., Ex. 10.)

On April 10, 2004, plaintiff sent an Inmate Request Slip to

Jane Coplan, Acting Warden of the NHSP, in which he made the

following request: "Please remove the SEX OFFENDER PROGRAM and

POSITIVE CONNECTIONS from my Classification. I was not sentenced

by the Court to such programs nor do [I] believe in the methods

5 used in such programs." (Compl., Attach. 3.) Warden Coplan

responded: "You are serving a 10-20 year sentence for sex

offenses. Therefore, the department will make the appropriate

recommendations." (I d .)

It is uncertain whether plaintiff appealed the Warden's

decision to the Commissioner. The record contains the yellow

(inmate's) copy of an Inmate Request Slip directed to the

Commissioner.2 But, the lower portion of that form, typically

filled out by the recipient of the inmate request, is incomplete,

suggesting that the form never made it to the Commissioner, and

2 That form, dated April 25, 2004, contains the following request:

Please be advised that Warden Jane Coplan has denied my request to remove the Sex Offender Program (SOP) from my Classification status . . . . I do not believe in the methods used in the aforementioned program nor was I sentenced by the court to such a program. Forcing me to participate in this program is violating my right to freedom of religion and is a violation of the separation of powers. I am exercising my First Amendment Rights. Accordingly, pursuant to D.O.C. procedure, I am appealing the Warden's decision to you. Please remove any and all twelve step, faith based, or religious programs off of my Classification s t a t u s ."

(Compl., Attach. 4.)

6 the record does not contain either the white (offender records)

or pink (staff) copies, further suggesting that plaintiff never

completed his appeal. (Compl., Attach. 4.) Plaintiff asserts

that his "subsequent appeal to Acting Commissioner Dolecal was

simply ignored" (Pl.'s Mem. of Law (with document no. 59) at 4),

while defendants assert that they "have no record of receiving

the inmate request slip identified in plaintiff's Attachment 4."

(Answer 5 6.)

Plaintiff filed this action on June 1, 2004. On April 5,

2005, plaintiff directed an Inmate Request Slip to Kim Lacasse,

the DOC's Administrator of Classification. In it, he made a

request as follows:

You sent a list of names to Keith Saunders to be sent to Berlin. My name was on that list. Notwithstanding, that I work and have not had a write up in almost seven years, I have and will continue to [participate in] program[ming] with the exception of 12-step, religious or higher power programs. Aside from several educational certificates, I have my completion certificate from VICTIM IMPACT and I have been signed up for ANGER MANAGEMENT for quite some time. It has been confirmed by Denny Laughlin that I am still on the list for that program. I have been told to try to expedite the process so that you will not move me to Berlin. However, I have no control over that and we as a unit have been told via notice not to request where we are on the list of programs. There

7 are no other programs available to me. What should I do?

(Pl.'s O b j . to Def.'s Mot. Summ. J., Ex. 2.) Lacasse responded:

Are you refusing to do SOP? Is this what you refer to as the religious based program? If you are currently participating in programs, you will not be moved. At some point, your refusal to do the SOP program may jeopardize your bed in the South unit. Without SOP, you will not be paroled.

(I d .) Subsequently, however, the parties stipulated that absent

a valid disciplinary reason, plaintiff will not be moved from his

current housing. (See Order of May 19, 2005 (document no. 55).)

In this suit, plaintiff asserts that defendants violated his

rights under the establishment clause of the First Amendment by

requiring him to participate in the religion-based SOP, and he

asks the court to enjoin the DOC from: (1) imposing a faith-based

program on him; and (2) "making adverse recommendations, denying

parole, or retaliating in any manner for [exercising his]

constitutional right not to participate in religious-based

p r o g r a m s ." Discussion

Both plaintiff and defendants have moved for summary

judgment. Plaintiff argues that defendant Coplan has admitted,

in a deposition in another lawsuit, that the SOP is a religion-

based program and that her admission entitles him to opt out of

the SOP without consequence and have all references to the SOP

stricken from his prison record. Defendants argue that they are

entitled to summary judgment because plaintiff has failed to

exhaust his administrative remedies, his claim is not ripe, and

requiring him to complete the SOP does not violate his rights

under the establishment clause.

A. Exhaustion

Defendants argue that plaintiff's suit is barred by 42

U.S.C. § 1997e(a), the exhaustion requirement of the Prison

Litigation Reform Act. Specifically, defendants point to the

fact that plaintiff sent Inmate Request Slips to the Warden and

the Commissioner, rather than using "the first formal step

required of submitting a request slip concerning this issue to

the unit personnel" and then using the "required grievance form

9 when he addressed a written complaint to the Warden and the

C o m missi o n e r ."

Plaintiff concedes that he did not follow the grievance and

complaint procedure set out in DOC Policy and Procedure Directive

1.16. There is a good reason why he did not. The Classification

Authorization Decision form containing the decision to which he

objected - i . e . , the recommendation that he participate in the

SOP - explicitly stated that the decision was directly appealable

to the Warden and the Commissioner and that the proper form of

appeal was an Inmate Request Slip. Moreover, rather than

rejecting plaintiff's Inmate Request Slip as procedurally

improper, the Warden provided plaintiff with a substantive

response, on the merits of his request. Accordingly, defendants'

"lack of exhaustion" defense due to plaintiff's use of an

"incorrect procedure," is of course unpersuasive.

It is arguable, based on this record, that plaintiff did not

appeal the Warden's decision to the Commissioner, and, therefore,

did not complete the available administrative process. But

defendants do not make that argument. Given the absence of an

10 asserted and persuasive argument to the contrary, the court

assumes, without deciding, that plaintiff's claim is fully

exhausted.

B. Ripeness

Defendants next argue that plaintiff's claim is not ripe

because he will not be eligible for admission into the SOP for

approximately twenty years. Plaintiff disagrees, contending that

he is currently subject to sanctions for his failure to comply

with the SOP requirement in his 2003 Classification Authorization

Decision.

"Two factors are used to evaluate ripeness: 'the fitness of

the issues for judicial decision and the hardship to the parties

of withholding court consideration.'" Doe v. B u s h .

,

138 (1st Cir. 2003) (quoting Abbott Labs v. G a r d n e r ,

(1967)). "Ordinarily, both factors must be present."

I d . (citing Ernst & Young v. Depositors Econ. P r o t . C o r p . ,

(1st Cir. 1995)). Regarding events yet to occur,

"the doctrine of ripeness . . . asks whether an injury that has

not yet happened is sufficiently likely to happen to warrant

11 judicial review." I d . at 138 n.4 (quoting Gun Owners' Action

League v. Sw i f t ,

, 205 (1st Cir. 2002)).

Here, the issue plaintiff seeks to have decided is not fit

for judicial review. The right plaintiff identifies - i . e . . the

right not to have religious programming imposed upon him - is

plainly of constitutional dimension. But that right is

implicated neither by plaintiff's current circumstance nor the

relief he seeks.

Plaintiff's current situation is that his 2003

Classification Authorization Decision lists the SOP as an

assignment/recommendation. But NHSP inmates are not "forced" to

enroll in the SOP; they must voluntarily apply for admission, a

step plaintiff has yet to take. Thus, the SOP, religion-based or

not, has not been imposed upon plaintiff; he has suffered no

injury, constitutional or otherwise, resulting from the notation

on his Classification Authorization Decision form.3

3 In his memorandum of law in support of his objection to defendants' motion for summary judgment, plaintiff argues that he faces a variety of sanctions for "refusing to participate" in the SOP. Obviously, likely denial of parole is a hardship plaintiff would face if he did not complete the SOP, but given his

12 Moreover, the relief plaintiff seeks is not a revision of

the SOP to eliminate any religious elements that may be included

therein, but rather, elimination of the SOP notation from his

classification materials. However, even if the court were to

determine that some past version, or the current version, of the

SOP was or is tainted by religious elements, such a determination

would say nothing about the constitutional legitimacy of the SOP

at whatever future time plaintiff becomes eligible and might

ineligibility for the SOP until a date much closer to his minimum release date, it can hardly be said that plaintiff's suffering from that particular hardship for his "refusal" to participate in the SOP. And, given that plaintiff would not be admitted to the SOP at this point in any event, even if he were to apply, it is difficult to characterize his current objections to the program as a refusal to participate in it. Plaintiff also seems to suggest that he may be transferred from his current housing unit for failing to participate in the SOP. However, it is undisputed, as a factual matter, that under NHSP policy, housing in the Medium South Unit is granted to those inmates who are currently participating in programming and that any inmate not involved in programming - for any reason - is at risk of being transferred to another housing unit. In other words, if plaintiff were to complete the SOP (or have it stricken from his Classification Decision Authorization form), and if he had no other programs available to him, he would be just as vulnerable to transfer from his current housing unit as he would be if he refused to apply for the SOP. Therefore, it is incorrect to say that plaintiff faces disciplinary action resulting from his "refusal" to participate in the SOP.

13 apply for admission.4 That is, given that plaintiff's

participation in the SOP will occur, if at all, well in the

future, and that the SOP evolves from term to term, plaintiff's

potential future exposure to some past (and flawed) version of

the SOP is not sufficiently likely to warrant judicial review

now. And, because plaintiff has not yet been admitted to the

SOP, any pronouncement the court might make regarding the past or

current state of the SOP would necessarily pertain exclusively to

the constitutional rights of past and current enrollees,5 rights

4 "The curriculum of the SOP changes periodically, usually each term . . ." (McCormack Aff. 5 7.) For example:

The SOP curriculum overview which outlines the stages of treatment in the SOP has been recently revised to provide notice to inmates of those materials, which may contain a spiritual reference, and of their right to refuse to participate or complete exercises with that content.

(McCormack Aff. 5 16.) Obviously, one cannot predict with precision what materials will be in use when plaintiff becomes eligible, and applies for admission to the SOP. Similarly, because plaintiff has not applied for the SOP, much less participated in it. Warden Coplan's December 17, 2002, deposition testimony in Davidson v. Stanley. No. 02-190-JD, to the effect that she was aware that the SOP was a twelve-step program, says little about the SOP that will be available to plaintiff if and when he applies for admission.

5 The degree to which plaintiff is asserting the rights of others, rather than his own, is well illustrated by his admission that his knowledge of the content of the SOP is based not upon

14 that are not plaintiff's to litigate. See Eulitt ex rel. Eulitt

v. Me. Dep't of E d u c .,

(1st Cir. 2004)

(explaining the circumstances in which one may assert the

constitutional rights of a third p a r t y ) . Accordingly,

plaintiff's constitutional claims are not ripe for adjudication.

Conclusion

For the reasons given, plaintiff's motion for summary

judgment (document no. 59) is denied, and defendants' motion for

summary judgment (document no. 60) is granted. The clerk of the

court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J. McAuliffe Chief Judge

August 29, 2 0 05

cc: Randy J. Duquette, pro se Mary E. Maloney, Esq.

participation, but on materials passed along to him by other inmates. (Pl.'s Mem. of Law (with document no. 59) at 7 n.*.)

15