UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John R. Griffin, Jr.

v. Civil No. 17-cv-194-PB Opinion No.

N.H. Department of Corrections and Ashlyn St. Germain

REPORT AND RECOMMENDATION

Before the court is plaintiff John R. Griffin, Jr.’s

complaint (Doc. No. 1) asserting claims against the New

Hampshire Department of Corrections (“DOC”) and Ashlyn St.

Germain, Executive Assistant to the New Hampshire Adult Parole

Board (“APB”). Also pending is Griffin’s motion for summary

judgment (Doc. No. 6), filed before defendants have appeared.

Background

In June 2016, Griffin’s parole from an underlying state

sentence was revoked, and Griffin was incarcerated at the New

Hampshire State Prison (“NHSP”) after the revocation. In

November 2016, Griffin appeared before the APB and was approved

for reparole, subject to certain conditions. Documents in the

record indicate that in November 2016, the APB authorized

Griffin to be released on parole on the conditions that he have an approved housing plan, and remain free of disciplinary

infractions for a period of time. See St. Germain, Apr. 28,

2017 Response to Apr. 25, 2017 Inmate Request Slip (“IRS”) (Doc.

No. 1, at 9); St. Germain, Apr. 7, 2017 Response to Apr. 4, 2017

IRS (Doc. No. 1, at 17).

On March 28, 2017, Griffin submitted an IRS to the APB,

requesting a parole rehearing in May 2017, six months after the

November 2016 hearing. See Griffin, Mar. 28, 2017 IRS (“March

28 IRS”) (Doc. No. 1, at 19). Griffin asserted in the IRS that

although he had been paroled, subject to conditions, the

condition that his release be delayed until he had an “approved

housing plan” discriminated against him because of his inability

to pay for housing.

He further asserted that the

underlying June 2016 revocation of his parole (which preceded

the November 2016 conditional re-parole decision), in his view,

was obtained in violation of his federal rights. St. Germain,

on behalf of the APB Office, responded that she wanted Griffin

to tell her what the goal of a new hearing would be, since he

had already been granted parole and “another hearing is not

going to do anything” for his lack of housing. St. Germain,

Mar. 31, 2017 Response (“March 31 response”) to March 28 IRS

(Doc. No. 1, at 19).

In April 2017, Griffin submitted multiple requests for a

new APB hearing, stating that he intended to seek

2 reconsideration of the APB’s June 2016 revocation of his parole,

because he believed the revocation was obtained in violation of

his federal rights, see Apr. 4, 2017 IRS (Doc. No. 1, at 17);

that he was suing state officers for damages relating to the

June 2016 parole revocation, see Apr. 9, 2017 IRS (Doc. No. 1,

at 11); and that he was entitled to a six-month statutory review

hearing before the APB, see Apr. 25, 2017 IRS (Doc. No. 1, at

9). St. Germain, on behalf of the APB, responded by stating

that the courts would evaluate his claims regarding the June

2016 revocation; and that the six-month statutory review

procedure under N.H. Rev. Stat. Ann. (“RSA”) § 651-A:19, IV, was

designed for inmates who remained subject to an extended term of

incarceration for a parole violation, while he, in contrast, had

already been approved for release on parole, subject to

conditions, in November 2016.

Griffin filed a complaint in this case asserting that the

decision to deny him a hearing violated his rights under RSA

§ 651-A:19, VI; and also violated his rights to due process

under the Fourteenth Amendment. Griffin further asserts that he

was denied a hearing in May 2017 in retaliation for his exercise

of First Amendment rights, in suing DOC parole officers in a

separate case. Citing

, Griffin seeks damages

and an APB hearing. Griffin moved for summary judgment on his

claims, before this court completed its preliminary review of

3 his claims. See Doc. No. 6.

Discussion

I. Preliminary Review

A. 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).

B. Eleventh Amendment

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

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

4 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.

C. First Amendment Retaliation

Griffin asserts First Amendment retaliation claims against

St. Germain. To state such a claim, Griffin must allege: (1)

that the conduct which led to the retaliation was protected by

the First Amendment; (2) that he suffered adverse action at the

hands of the defendant; and (3) that there was a causal link

between the exercise of his First Amendment rights and the

adverse action taken. See Hannon v. Beard,

(1st

Cir. 2011). De minimis adverse actions taken in response to

protected speech are not actionable. See Morris v. Powell,

(5th Cir. 2006). An adverse act is not de

minimis, however, if it would deter an individual of ordinary

firmness from exercising his or her First Amendment rights. See

id.; see also Starr v. Dube,

(1st Cir.

2009).

Griffin asserts that the decision to deny him a six-month

review hearing before the APB in May 2017 was taken in

retaliation for his filing of a lawsuit against parole officers.

Nothing in the record, however, undermines St. Germain’s

assertion in her March 31 response to Griffin’s March 28 IRS,

5 that if a rehearing were granted, it would not alter Griffin’s

circumstances, as the APB would not revisit its requirement that

Griffin have an approved housing plan before he could be

released on parole. Cf. N.H. Admin. R., Par 301.03(b)(2) (APB

“shall consider” residence, neighborhood, and community in which

inmate intends to live, as factors in determining whether to

release inmate on parole). No inmate of ordinary firmness,

already approved for parole, subject to an as-yet unsatisfied

condition that would not be revisited, would be deterred from

engaging in First Amendment activity by the threat that he would

be denied a rehearing that would not affect that condition.

Accordingly, the district judge should dismiss Griffin’s First

Amendment retaliation claim as Griffin has failed to demonstrate

that any non-de minimis adverse act was taken against him in

response to his exercise of First Amendment rights.

D. Fourteenth Amendment Due Process

Griffin has asserted that the failure to afford him a

hearing before the APB in May 2017 violated his due process

rights under the Fourteenth Amendment. In particular, Griffin

argues that he had a statutory right to a hearing, under RSA

§ 651-A:19, VI, and that the denial of that right deprived him

of due process of law.

The Fourteenth Amendment’s requirements of due process

6 apply only to the deprivation of constitutionally protected

interests in life, liberty, or property. See Mathews v.

Eldridge,

(1976). While state law can create

a protected liberty interest, it is also possible for state laws

to require state agencies to follow procedures that exceed the

requirements of the Fourteenth Amendment’s Due Process Clause.

See Whalen v. Mass. Tr. Ct.,

, 26 n.6 (1st Cir. 2005)

(claims “‘involving state procedural guarantees that are above

and beyond constitutional due process requirements’ are not

properly before a court examining an alleged deprivation of a

plaintiff’s federal due process rights” (citation omitted)). In

other words, the existence of a right to state procedural

protections does not by itself establish the existence of a

protected liberty or property interest.

Griffin’s due process claim, to be actionable, relies on

the premise that an inmate incarcerated on a parole violation in

New Hampshire has a liberty interest in a hearing, six months

after being recommitted for that parole violation. If the court

were to assume, for purposes of this preliminary review, that

state law grants an inmate in Griffin’s circumstances a right to

a hearing, the court would not be bound to find that the right

to a hearing is protected and enforceable under the Fourteenth

Amendment.

A convicted person serving a valid sentence of

7 incarceration has no federal constitutional right to release

from incarceration, on parole or otherwise, “‘before the

expiration of a valid sentence.’” González–Fuentes v. Molina,

, 886 (1st Cir. 2010) (quoting Greenholtz v. Inmates

of Neb. Penal & Corr. Complex,

(1979)). A right

to parole under the Fourteenth Amendment’s Due Process Clause

exists only if state law creates that right, see Sandin v.

Conner,

, 483–84 (1995); Hamm v. Latessa,

(1st Cir. 1995), and, in general, “[t]here is no right

to parole in New Hampshire.” In re Warden,

,

, 866 (2015).

Griffin’s situation is essentially that of an inmate

serving a valid sentence who is not presently eligible for

release on parole, as he has not satisfied a condition

antecedent to his release. As Griffin does not have a state-

created liberty interest in parole that is protected by the

Fourteenth Amendment, see Chartier v. N.H. Dep’t of Corr., No.

16-cv-127-PB,

, at *3,

, at *6 (D.N.H. Apr. 14, 2016), R&R approved, No. 16-cv-

127-PB,

, at *1,

, at

*1 (D.N.H. May 17, 2016), the Fourteenth Amendment Due Process

Clause does not require the state to provide him with a six-

month review hearing to reassess the conditions upon which his

release on parole would be authorized. Accordingly, Griffin’s

8 due process claim should be dismissed for failure to state a

federal claim upon which relief can be granted.

E. Claim under RSA § 651-A:19, IV

Griffin claims that defendants violated RSA § 651-A:19, IV,

in failing to afford him a hearing before the APB in May 2017.

This state law claim should be dismissed without prejudice to

refiling in a state court action, as Griffin has failed to state

any related claim for relief within this court’s original

jurisdiction. See

(c)(3).

II. Summary Judgment Motion

Griffin moves for summary judgment on claims that this

court should dismiss, for reasons set forth above. Accordingly,

Griffin’s motion for summary judgment should be denied without

prejudice to refiling if the district judge does not accept the

recommendation that this action be dismissed in its entirety.

Conclusion

For the foregoing reasons, the district judge should: 1)

dismiss all claims in this action, pursuant to 28 U.S.C. § 1915A

and

(e)(2); 2) deny Griffin’s motion for summary

judgment (Doc. No. 6), without prejudice to refiling if this

action is not dismissed; and 3) dismiss Griffin’s state law

9 claims, asserting a violation of his rights under RSA § 651-

A:19, IV, without prejudice to refiling in a state court case.

Any objections to this 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

10