UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John R. Griffin, Jr.

v. Civil No. 17-cv-209-LM Opinion No.

Joseph P. Nadeau and New Hampshire Department of Corrections

REPORT AND RECOMMENDATION

Before the court for preliminary review, pursuant to

(e)(2), 28 U.S.C. § 1915A, and LR 4.3(d)(1), is

plaintiff John R. Griffin, Jr.’s complaint (Doc. No. 1)

asserting claims against the New Hampshire Department of

Corrections (“DOC”) and Joseph P. Nadeau, a member of the New

Hampshire Adult Parole Board (“APB”).

Preliminary Review Standard

The magistrate judge in this court conducts a preliminary

review of prisoner complaints filed in forma pauperis. See LR

4.3(d)(1). The magistrate judge may recommend to the district

judge that claims be dismissed if, among other things, the court

lacks jurisdiction, a defendant is immune from the relief

sought, or the complaint fails to state a claim upon which

relief may be granted. See

(e)(2),

1915A(b)(1); LR 4.3(d)(1)(A). In conducting its preliminary review, the court construes pro se complaints liberally. See

Erickson v. Pardus,

(2007) (per curiam). The

complaint must contain “sufficient factual matter, accepted as

true, to ‘state a claim to relief.’” See Ashcroft v. Iqbal,

(2009) (citation omitted).

Background

In March 2016, Griffin was paroled to the community from a

sentence he had been serving, imposed pursuant to an underlying

state conviction. See Doc. No. 1, at 11. While on parole, in

May 2016, Griffin mailed a letter (“May 2016 Letter”), addressed

to a prosecutor at the Hillsborough County Attorney’s Office.

See Doc. No. 1, at 11. The May 2016 Letter was considered, by

the recipient or her supervisor, to be threatening. See

While on parole, Griffin had lived at a residence called

“Helping Hands,” until he was evicted on May 10, 2016. See

Griffin was arrested for parole violations on June 1, 2016. See

On June 7, 2016, defendant Joseph P. Nadeau, a member of

the New Hampshire Adult Parole Board (“APB”), issued a warrant

for Griffin’s arrest for those parole violations. See

Griffin appeared personally and through counsel at the June

21, 2016 parole revocation hearing. See Doc. No. 1, at 12. A

three-member panel of the APB, including defendant Nadeau,

revoked Griffin’s parole upon finding that he had failed to be

“of good behavior,” N.H. Admin. R. Par 401.02(b)(7), and that he

2 had not obtained his parole officer’s permission before changing

his residence, id. at 401.20(b)(3). See Doc. No. 1, at 12.

Claims

Griffin asserts the following claims in this action, under

:

1. Defendant Joseph Nadeau conspired to have Griffin prosecuted for a parole violation, in retaliation for Griffin’s exercise of First Amendment rights.

2. Defendant Joseph Nadeau conspired with New Hampshire Parole Officer Jennifer Walters on June 7, 2016, to issue a warrant for Griffin’s June 1, 2016 arrest for a parole violation, in violation of Griffin’s Fourth Amendment rights.

3. Defendant Joseph Nadeau was a member of the APB that revoked Griffin’s parole on June 21, 2016, in violation of Griffin’s Fourteenth Amendment right to have an impartial decision-maker in a parole revocation proceeding.

4. Defendant Joseph Nadeau misapplied state law, in the proceedings that resulted in the revocation of Griffin’s parole and his recommittal to the NHSP for a period of incarceration.

5. Defendant Joseph Nadeau’s participation in the revocation of Griffin’s parole and in the issuance of the arrest warrant violated Griffin’s right to substantive due process under the Fourteenth Amendment.

Griffin seeks damages and injunctive relief, specifically, an

order requiring the DOC to alter parole procedures to conform to

the United States Constitution.

Discussion

I. Eleventh Amendment

Griffin names a state agency, the DOC, as a defendant to

3 his claims for injunctive relief. “A state’s immunity under the

Eleventh Amendment applies whether a private plaintiff’s suit is

for monetary damages or some other type of relief.” New

Hampshire v. Ramsey,

, 14 (1st Cir. 2004). Griffin’s

claims against the DOC for damages and injunctive relief should

be dismissed as barred by the Eleventh Amendment.

II. Absolute Immunity

Griffin is suing Joseph P. Nadeau for damages. Nadeau is

the member of the APB who signed a warrant for Griffin’s arrest

on June 7, 2016, and who served as a member of the board that

revoked Griffin’s parole on June 21, 2016.

“[P]arole board members are shielded by absolute immunity

in § 1983 actions seeking monetary damages for actions taken by

the members in the performance of their official duties.”

Johnson v. R.I. Parole Bd. Members,

(1st Cir.

1987) (per curiam). “The [APB’s] official duties include

‘processing parole applications and deciding whether to grant,

deny, or revoke parole.’” Staples v. NH State Prison, Warden,

No. 16-cv-033-PB,

,

, at *3,

, at *9 (D.N.H. Mar. 17, 2017) (ECF No.

42) (citation omitted). APB members’ official duties also

include issuing warrants for the arrest of alleged parole

violators. See N.H. Rev. Stat. Ann. (“RSA”) § 504-A:4, II. APB

4 “members retain absolute immunity” while performing their

duties, “even if a defendant is denied parole in retaliation for

exercising First Amendment rights.” Staples,

,

at *3,

, *10.

The facts alleged as to defendant Nadeau concern his

issuance of a warrant for Griffin’s arrest, his alleged bias and

decision not to recuse himself, and statements, legal

conclusions, and decisions he made in the context of serving as

a member of the June 21, 2016 APB that revoked Griffin’s parole.

Those actions were taken within the scope of his official duties

as an APB member, and are within the scope of conduct protected

by absolute immunity from damages claims. Cf. Cok v. Cosentino,

(1st Cir. 1989) (absolute judicial immunity

applies to “any normal and routine judicial act” undertaken

within scope of judge’s jurisdiction, “no matter how erroneous

the act may have been, how injurious its consequences, how

informal the proceeding, or how malicious the motive”);

Singleterry v. Munson, No. 12-cv-067-JL,

, at *3,

, *9 (D.N.H. Sept. 7, 2012) (ECF No.

10) (“Even if the court were to credit [as true] that conclusory

accusation,” of conspiracy between justice of the peace [“JP”]

and police officer who prepared false warrant affidavit, JP,

“when she signed the warrant, was . . . acting in her official

capacity,” and as such “she is protected from liability by

5 absolute judicial immunity from a suit brought under § 1983 for

the act of signing the warrant”), R&R approved, No. 12-cv-067-

JL,

,

(D.N.H. Oct.

14, 2012) (ECF No. 13).

Griffin’s assertions regarding Nadeau’s conspiracy with

other state agents, including a parole officer, are speculative

and conclusory. Stripped of legal conclusions, the allegations

in the complaint - that Nadeau issued a warrant for Griffin’s

arrest after that arrest occurred; that Nadeau had contacts with

Griffin’s parole officer; that Nadeau made decisions affecting

the length of Griffin’s recommittal to the NHSP; that Nadeau

considered Griffin’s views expressed in the May 2016 Letter to

be repugnant, not civil, and as grounds for revoking his parole;

and that Nadeau was a member of the APB who revoked Griffin’s

parole – all fail to state a claim for relief against Nadeau

upon which relief can be granted. Accordingly, all of Griffin’s

claims against Nadeau should be dismissed.

III. Heck

Even if the court were to conclude that Griffin’s claims

are not barred by Eleventh Amendment immunity and absolute

immunity, such claims would properly be dismissed under Heck v.

Humphrey,

(1994). Under Heck, courts must dismiss

§ 1983 claims if a favorable judgment would necessarily imply

6 the invalidity of that prisoner’s conviction or sentence, unless

it has been previously reversed, expunged, or otherwise declared

invalid. Id. at 487. In a related case filed by Griffin, the

court concluded that Heck required dismissal of Griffin’s § 1983

claims if a favorable judgment would necessarily imply the

invalidity of the decision to revoke his parole. See Griffin v.

Walters, No 16-cv-438-JL,

, at *3,

, at *6 (D.N.H. Aug. 11, 2017) (ECF No. 72),

R&R approved, No 16-cv-438-JL,

,

(D.N.H. Aug. 31, 2017) (ECF No. 78); see also White

v. Gittens,

(1st Cir. 1997).

Plaintiff has alleged that his First Amendment activities

led to the arrest and parole revocation proceedings. Records of

that arrest, filed here as Doc. No. 1, at 11, confirm that

Parole Officer Jennifer Walters based a warrant application,

relating to the June 1, 2016 arrest, in part, upon the May 2016

Letter. Records of the APB’s decision, filed here as an exhibit

to the Complaint, Doc. No. 1, at 12-13, also demonstrate that

the May 2016 Letter was the basis for the APB’s finding that

Griffin violated a condition of his parole.

This proceeding is not the proper place for Griffin to test

the validity of his arrest and parole revocation, as the parole

revocation decision has not been previously invalidated. A

favorable decision on Griffin’s claims regarding the validity of

7 the arrest and prosecution of Griffin’s parole violations, in

light of the First, Fourth, and Fourteenth Amendments, would

necessarily impugn the validity of the revocation of Griffin’s

parole. The Heck rule, applied in this case, requires dismissal

of all of the claims Griffin has asserted here, whether for

injunctive relief or damages. See Griffin,

, at

*3,

, at *7-*8.1

Conclusion

For the foregoing reasons, the district judge should

dismiss this action in its entirety. Any objections to this

1See also Garcia-Melendez v. Gonzalez, No. CV 14-1560 (SEC),

, at *2,

, at *6 (D.P.R. Mar. 21, 2017) (Heck bars false arrest claim, as favorable verdict would require jury to find agent lacked probable cause to detain her, which in turn would imply that detention was illegal and her conviction invalid); Cabot v. Lewis, No. CV 13-11903-FDS,

, at *9-*10,

, at *23-*24 (D. Mass. Mar. 15, 2017) (Heck bars plaintiff from challenging whether there was probable cause for arrest, as to do so, he would have to negate element of offense for which he received pretrial probation); Hutchins v. Maine State Hous., No. 1:14-CV-00491-JAW,

, at *4,

, at *11-*12 (D. Me. Apr. 16, 2015) (“civil claim alleging that revocation proceedings or the imposition of special conditions were the result of or were wrongly decided because of false testimony is . . . subject to the Heck bar” (citing cases)), R&R approved, No. 1:14-cv-00491- JAW,

, at *1,

(D. Me. May 13, 2015); Neblett v. Concord Fed. Prob., No. 13-CV-515-NT,

, at *3-*4,

, at *6-*13 (D.N.H. Jan. 8, 2014) (applying Heck to selective prosecution claim, which challenged, as discriminatory, probation violation charge that resulted in imposition of special condition requiring probationer to reside in halfway house), R&R approved, No. 13-CV-515-NT,

, at *1,

(D.N.H. Feb. 28, 2014).

8 Report and Recommendation must be filed within fourteen days of

receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The

fourteen day period may be extended upon motion. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Santos-Santos v. Torres-

Centeno,

(1st Cir. 2016).

______________________________ Andrea K. Johnstone United States Magistrate Judge

September 21, 2017

cc: John R. Griffin, Jr., pro se

9