Reid v . Stanley CV-04-369-JD 07/06/06 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Reid

v. Civil N o . 04-cv-369-JD Opinion N o .

Phil Stanley, et a l .

O R D E R

Robert Reid, who is proceeding pro s e , alleges equal

protection and due process violations arising from the

circumstances of his incarceration in Connecticut, as a New

Hampshire prisoner. The court denied the defendants’ first

motion for summary judgment, without prejudice, because the

defendants overlooked Reid’s equal protection claim, relied on

affidavits based on “knowledge and belief,” and failed to provide

the necessary documentary support for the affidavits. The court

also noted that Reid had not served the defendants with his cross

motion for summary judgment or his objection to the defendants’

motion. The defendants and Reid have now filed second motions

for summary judgment and their objections, and the service issue

has been resolved.

With their motion, the defendants submit the affidavits of

Kimberly Lacasse and Gregory Crompton, which are again based upon

the affiants’ “knowledge and belief.” Reid challenges the

defendants’ affidavits as failing to comply with the requirements

of Federal Rule of Civil Procedure 56(e). The defendants have

not responded to Reid’s objection. “Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.”

Fed. R. Civ. P. 56(e). That rule is ordinarily applied “to each

segment of an affidavit, not to the affidavit as a whole.” Perez

v . Volvo Car Corp.,

(1st Cir. 2001).

Therefore, only the segments of affidavits that meet the Rule 56(e) standard may be credited for purposes of a motion for

summary judgment.

Gregory Crompton states that he was the Director of

Classifications at the New Hampshire Department of Corrections

from 1994 until 2002. Kimberly Lacasse followed Crompton in that

job. Both Crompton and Lacasse explain the bases of their

personal familiarity with Robert Reid and his record and their

familiarity with the classification system in New Hampshire.

Lacasse states that she reviewed Reid’s records from the

Connecticut Department of Corrections and provides copies of at least some of those records. The court accepts those parts of

the affidavits that are properly supported by facts which show

the affiants’ personal knowledge.

Background

Robert Reid was convicted in a New Hampshire state court of

second degree assault on a New Hampshire State Trooper in 1989.

2 He was sentenced to ten to thirty years in prison. His minimum

parole date was February 1 6 , 2002, and his maximum release date

is in 2019.1 In February of 1998, Reid was transferred from the

New Hampshire State Prison to a prison in the Connecticut

Department of Corrections system pursuant to the New England

Interstate Corrections Compact and an agreement between New

Hampshire and Connecticut. N.H. Rev. Stat. Ann. Ch. 622-A.

Under the terms of the agreement, transferred prisoners are “subject to all the provisions of law and regulations applicable

to persons committed for violations of law of the receiving state

not inconsistent with the sentence imposed.” Contract for the

Implementation of the Interstate Corrections Compact, ¶ 1 7 . The

defendants interpret that provision to mean that a transferred

prisoner is subject to the classification procedures of the

receiving state. The New Hampshire Department of Corrections,

however, continues to control the parole status of a prisoner who

is transferred to another state.

Reid represents that Connecticut conducts only annual reviews of prisoners’ security classifications, while New

Hampshire conducts classification reviews every ninety days. In

addition, under the Connecticut procedures, a prisoner will not

be given a reduced custody classification until he has a firm

1 There is some indication in the documents provided by the defendants that Reid’s original minimum parole date was August 2 9 , 1999. Both Reid and the defendants, however, refer to February 1 6 , 2002, as his minimum parole date.

3 “vote to parole” date. The New Hampshire Parole Board, however,

will not vote to parole unless a prisoner has been classified for

reduced custody.

In 2003, Reid filed a petition for a writ of habeas corpus

in state court in New Hampshire asserting that his parole

eligibility in New Hampshire was being affected by the

Connecticut classification system. On August 1 5 , 2003, the state

court ordered the New Hampshire Department of Corrections to move expeditiously toward reaching an agreement with Connecticut to

provide Reid a similar classification as he would be entitled to

have in New Hampshire so that Reid’s parole opportunity would not

be delayed. Reid filed suit in this court when he remained in

the Connecticut prison system without any change in his

classification.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

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

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v . Catrett,

1 7 , 323 (1986). A party

opposing a properly supported motion for summary judgment must

4 present competent evidence of record that shows a genuine issue

for trial. See Anderson v . Liberty Lobby, Inc.,

4 2 ,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255.

When parties file cross-motions for summary judgment, the court

must consider the motions separately to determine whether summary

judgment may be entered under the Rule 56 standard. Pac. Ins.

Co., Ltd. v . Eaton Vance Mgmt.,

8 4 , 588 (1st Cir. 2004); Bienkowski v . Northeastern Univ.,

3 8 , 140 (1st

Cir. 2002).

Discussion

Reid brings due process and equal protection claims against

officials and employees of the New Hampshire Department of

Corrections, Phil Stanley, Jane Coplan, Greg Crompton, Denise

Heath, and Kim Lacasse. He contends that the alleged violations

of his constitutional rights arise from the incompatibility of

the New Hampshire parole requirements and the Connecticut

classification requirements. He also contends that Connecticut’s

classification review schedule did not provide him with the same

opportunity for level reduction that the New Hampshire

classification procedures would have allowed. The defendants

move for summary judgment, contending that they are entitled to

qualified immunity and that Reid cannot prove his claims. Reid

moves for summary judgment and opposes the defendants’ motion.

5 I. Defendants’ Motion for Summary Judgment

The defendants contend that they are entitled to summary

judgment on both of Reid’s claims on the ground of qualified

immunity because the applicable law was not clearly established

in Reid’s favor at the time in question. Alternatively, they

argue that they are entitled to summary judgment because Reid

cannot prove either claim. They also contend that defendants

Stanley and Coplan are entitled to summary judgment “as there is no evidence that either of these defendants were personally

involved in any of the actions that plaintiff complains about.”

Def. Mem at 2 2 .

A. Qualified Immunity

“Qualified immunity protects public officials from civil

liability insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Valdizan v . Rivera

-Hernandez,

3 , 64 (1st Cir. 2006) (quoting Surprenant

v . Rivas,

, 14 (1st Cir. 2005)). Courts in this

circuit use “a three-step algorithm for the determination of

whether a state actor is entitled to qualified immunity[:] . . .

(i) whether the plaintiff’s allegations, if true, establish a

constitutional violation; (ii) whether the constitutional right

at issue was clearly established at the time of the putative

violation; and (iii) whether a reasonable officer, situated

6 similarly to the defendant, would have understood the challenged

act or omission to contravene the discerned constitutional

right.” Pagan v . Calderon,

6 , 31 (1st Cir. 2006).

1 . Due Process Claim

Reid contends that the defendants’ decision to keep him incarcerated in Connecticut, where he could not satisfy the New Hampshire parole requirements because he was subject to the Connecticut security classification system, violated due process. He contends that because the New Hampshire Parole Board required him to achieve a reduced custodial classification that would allow him to be transferred to a halfway house before he would be eligible for parole, he had a liberty interest in achieving that classification. He argues that certain provisions of the New England Interstate Corrections Compact provide the basis of a liberty interest. See N.H. Rev. S t . Ann. ch. 622-A. On initial review, the magistrate judge concluded that Reid stated a due process claim, based on a liberty interest in eligibility for a minimum security placement.2

“The Fourteenth Amendment’s Due Process Clause protects

persons against deprivations of life, liberty, or property; and

2 The magistrate’s finding was based, in part, on the analysis in Carillo v . DuBois,

(D. Mass. 1998), where the court concluded that the plaintiff showed a liberty interest in his eligibility for a minimum security classification. That part of the decision in Carillo, however, was vacated upon reconsideration. See Carillo v . DuBois,

(D. Mass. 1999).

7 those who seek to invoke its procedural protection must establish

that one of these interests is at stake.”3 Wilkinson v . Austin,

125 S . C t . 2384, 2393 (U.S. 2005); accord Pagan,

2 .

“There is no constitutional or inherent right of a convicted

person to be conditionally released before the expiration of a

valid sentence.” Greenholtz v . Inmates of Neb. Penal & Corr.

Complex,

, 7 (1979). A convicted inmate also has no

constitutional right or inherent liberty interest in a security classification. See Moody v . Daggett,

8 , 88 n.9

(1976). Further, “the Constitution itself does not give rise to

a liberty interest in avoiding transfer to more adverse

conditions of confinement.” Wilkinson, 125 S . C t . at 2393.

Nevertheless, a state “may under certain circumstances

create liberty interests which are protected by the Due Process

Clause.” Sandin v . Conner,

7 2 , 484 (1995). Following

Hewitt v . Helms,

(1983), courts considered the

language of a particular regulation to determine whether the

state had created a liberty interest. Wilkinson, 125 S . C t . at

3 In other words, whether Reid’s claim arises under procedural or substantive due process, he must prove that the defendants deprived him of a constitutionally protected interest. Redondo-Borges v . U.S. Dep’t of of Hous. & Urban Dev.,

, 7 (1st Cir. 2005) (procedural due process claim requires proof that plaintiff has been deprived of protected liberty or property interest without due process); Pagan,

(holding that substantive due process claim requires plaintiff to prove “both that the acts were so egregious as to shock the conscience and that they deprived him of a protected interest in life, liberty, or property”).

8 2393. In Sandin, the court “abrogated the methodology of parsing

the language of particular regulations” for the purpose of

determining whether a state had created a protected liberty

interest. Wilkinson, 125 S . C t . at 2394. Instead, the liberty

interest analysis depends upon whether the condition of restraint

“imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Sandin,

; accord Wilkinson, 125 S . C t . at 2394-97; see also Skinner v . Cunningham,

(1st Cir. 2005); Hamm v .

Latessa,

4 7 , 954 (1st Cir. 1995).

New Hampshire provides an opportunity for parole to its

prisoners as a privilege, not a right. See Knowles v . Warden,

N.H. State Prison,

8 7 , 390-91 (1995). As such, New

Hampshire has not created a liberty interest in the opportunity

for parole. Bussiere v . Cunningham,

4 7 , 753-54 (1990);

Baker v . Cunningham,

7 4 , 380 (1986); c f . Young v .

Harper,

(1997) (prisoner on parole or on

conditional preparole release enjoys liberty interest in that reduced custody); Debonis v . Warden, --- A.2d ---,

, at *3 (N.H. June 9, 2006) (paroled prisoner “afforded

due process protections against unreasonable deprivations of his

conditional liberty interest, including protections against an

unreasonable delay between his arrest and parole revocation

hearing”). See also Ainsworth v . Stanley,

, 5 (1st

Cir. 2002). Even if an analysis of New Hampshire’s statutory and

9 regulatory scheme for parole would be different under the Sandin

standard, there was no clearly established right to parole under

New Hampshire law during the time that Reid was housed in

Connecticut.

New Hampshire courts have not addressed the question of

whether a prisoner has a liberty interest in the New Hampshire

Department of Corrections’ custodial classification system or a

liberty interest under the New England Interstate Corrections Compact. This court has concluded the New Hampshire

classification system does not provide prisoners with a liberty

interest. See Pratt v . N.H. Dep’t of Corrs.,

, at

*9 n.7 (D.N.H. March 3 1 , 2006) (citing Reid v . Brodeur,

, at *2 (D.N.H. Jan. 2 4 , 2000)); c f . Wilkinson, 125 S . C t .

at 2394-95 (finding Ohio prisoners have liberty interest in

avoiding assignment to “supermax” prison); Rodi v . Ventetuolo,

2 , 25-26 (1st Cir. 1991) (finding protected liberty

interest under Rhode Island law in avoiding transfer to

administrative segregation). Courts have concluded that state law in Connecticut does not confer a liberty interest in the

classification system there. See Torres v . Howell,

, at *15-*16 (D. Conn. May 3 0 , 2006). The only decisions

that address the question of whether the New England Interstate

Corrections Compact provides a liberty interest have concluded

that it does not. See McCarthy v . Teta,

0 8 ,

(2d Cir. 1996) (unpublished decision); Carillo, 23

10 F. Supp. 2d at 108 (other parts vacated). Therefore, there was

no clearly established law during the time Reid was housed in

Connecticut that the Compact provided a liberty interest or that

prisoners had a protected liberty interest in being eligible for

a minimum security custodial classification.

The defendants are entitled to summary judgment on Reid’s

due process claim in the absence of clearly established law that

Reid had a protected liberty interest in any of the circumstances

he alleges.

2. Equal Protection Claim

“The equal protection guarantee of the Fourteenth Amendment

prohibits the state from ‘deny[ing] any person within its

jurisdiction the equal protection of the laws,’” meaning, in the

context of a state’s actions, “that all persons similarly

situated should be treated alike.” Pagan,

(quoting U.S. Const. amend. XIV, § 1 ; other internal quotation

marks omitted). “It is well established that a challenged

classification that does not involve a suspect class or impinge

upon fundamental rights is accorded a strong presumption of

validity.” United States v . Melendez-Torres,

5 , 52-53

(1st Cir. 2005) (internal quotation marks omitted). Such a

classification does not violate equal protection as long as it

satisfies the rational basis test.

at 5 3 .

Reid contends that while he was housed in Connecticut he was

11 treated differently than New Hampshire prisoners who remained in

New Hampshire prisons because of the differences between the

Connecticut and New Hampshire security classification systems,

which negatively affected his eligibility for parole. The

magistrate judge concluded that Reid stated an equal protection

violation based on the assumption that he was similarly situated

to New Hampshire prisoners in New Hampshire prisons and that no

rational basis existed for the difference in treatment. Reid does not contend that for purposes of this claim he is a member

of a suspect class or that the defendants’ actions implicated a

fundamental right.

The defendants argue that they are entitled to qualified

immunity because at the time in question, between 1998 and 2005,

there was no clearly established law that prohibited their

actions based on the equal protection clause. An equal

protection violation, based on an allegedly discriminatory denial

of a discretionary benefit, exists if the plaintiff can prove

“that (i) he was treated differently than other similarly situated supplicants and (ii) the differential treatment resulted

from a gross abuse of power, invidious discrimination, or some

other fundamental procedural unfairness.” Pagan,

(citing PFZ Props., Inc. v . Rodriguez,

8 , 32 (1st Cir.

1991) and Creative Env’ts, Inc. v . Estabrook,

2 2 , 832

n.9 (1st Cir. 1982)). In the context of prisons, the Equal

Protection Clause is violated when prison officials make it more

12 difficult for one prisoner, when compared to other similarly

situated prisoners, to obtain the benefit of parole without a

rational basis for doing s o . See Settles v . U.S. Parole Comm’n,

(D.C. Cir. 2005); accord Bishop v . Moran,

(D.R.I. 1987).

The law of equal protection in similar contexts was

sufficiently established to put the defendants on notice that

treating Reid’s eligibility for reduced custody classification, which affected his eligibility for parole, differently from other

similarly situated prisoners without a rational basis for doing

so could result in an equal protection violation. In addition,

the defendants were put on notice of a potential equal protection

problem when the New Hampshire state court resolved Reid’s habeas

corpus petition as follows: The State and the Department of Corrections acknowledged the different classification systems and have agreed to begin communications with the State of Connecticut to afford the defendant a similar classification as he would be eligible to receive in New Hampshire so that his parole opportunity would not be delayed. The State shall move expeditiously toward reaching an agreement with Connecticut. Reid v . Warden, 03-E-180 (N.H. Sup. C t . Aug. 1 5 , 2003). 4 Under

these circumstances, the defendants have not shown that they are

entitled to qualified immunity as to Reid’s equal protection

claim.

4 The defendants failed to address Reid’s state habeas proceeding in their motion for summary judgment.

13 B. Equal Protection Claim on the Merits

Although the defendants acknowledge the negative effect on

Reid caused by the conflict between the Connecticut

classification system and New Hampshire’s parole requirements,

they contend that Reid cannot show that he was treated

differently than similarly situated New Hampshire inmates who

were housed in New Hampshire prisons. The defendants further

argue that the state’s policy of subjecting transferred prisoners to the receiving state’s classification procedures is justified

by a rational relationship to a legitimate government purpose.

Reid has demonstrated that Connecticut’s classification system is

different from New Hampshire’s, but he has not shown in the

record submitted for summary judgment that he was treated

differently than other similarly situated New Hampshire

prisoners.

Whether persons are similarly situated depends on “‘whether

a prudent person, looking objectively at the incidents, would

think them roughly equivalent and the protagonists similarly situated. Much as in the lawyer’s art of distinguishing cases,

the ‘relevant aspects’ are those factual elements which determine

whether reasoned analogy supports, or demands, a like result.

Exact correlation is neither likely nor necessary, but the cases

must be fair congeners. In other words, apples should be

compared to apples.’” Tapalian v . Tusino,

, 6 (1st

Cir. 2004). “As with all such comparative evidence, it is the

14 plaintiff’s burden to demonstrate that she is comparing apples to

apples.” Rathbun v . Autozone, Inc.,

2 , 76 (1st Cir.

2004).

As the defendants have established, Reid has an extensive

disciplinary record in the New Hampshire and Connecticut prison

systems. Because of his history and continuing behavior

problems, until recently, Reid was classified at or near the

highest security level in both prison systems. Kimberly Lacasse, the Administrator of Classifications for the New Hampshire

Department of Corrections, states in her affidavit that Reid

would not have received any reduction in his classification level

even if he had been housed in a New Hampshire prison. Reid has

provided no evidence to the contrary or any evidence of a New

Hampshire prisoner with a similar record who received a lower

classification than he did.

Therefore, based on the record presented for summary

judgment, taken in the light most favorable to Reid, the

defendants have demonstrated that no trialworthy issue exists to support Reid’s claim that he was treated differently than

similarly situated New Hampshire prisoners. The defendants are

entitled to summary judgment on Reid’s equal protection claim.

Given this outcome, it is unnecessary to address the issue of

supervisory liability.

15 II. Reid’s Motion for Summary Judgment

Based on the summary judgment record and as the analysis of

the defendants’ motion demonstrates, Reid cannot show undisputed

facts that support his due process or his equal protection claim.

Therefore, he is not entitled to summary judgment in his favor.

Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (document n o . 38) is granted. The plaintiff’s

motion for summary judgment (document n o . 41) is denied.

The clerk of court shall enter judgment in favor of the

defendants and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

July 6, 2006 cc: Robert A . Reid, pro se Andrew B . Livernois, Esquire Mary E . Maloney, Esquire

16