UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Christopher Cremeans

v. Case No. 17-cv-572-SM Opinion No.

William Wrenn, Christopher Kench, Michael Zenk, Jon Fouts, and Nichole Kipphut

O R D E R

Plaintiff, Christopher Cremeans, an inmate at the New

Hampshire State Prison (“NHSP”), has brought this action under

, asserting that five prison officials, acting

in both their individual and official capacities, have violated

his rights under the First and Fourteenth Amendments. Before

the court are: (1) plaintiff’s “Motion to Bar and Preclude

Defendant’s Motion to Dismiss” (Doc. No. 18); (2) defendants’

motion to dismiss (Doc. No. 12); and (3) plaintiff’s request for

injunctive relief contained in the complaint (Doc. No. 1).

Motion to Bar and Preclude (Doc. No. 18)

Liberally construed, the motion to bar and preclude asserts

supplemental objections to defendants’ motion to dismiss along

with a request that the court sanction defendants by denying

their motion to dismiss, for what plaintiff argues are

insufficiently supported defenses and gross mischaracterizations of plaintiff’s claims. Taking plaintiff’s pro se status into

account, the court concludes that the motion to bar and preclude

is a permissible supplement to Cremeans’ objection to the

defendants’ motion to dismiss, and to that extent, the court has

duly considered the arguments therein in ruling on the motion to

dismiss. Finding, however, that defendants have neither

misrepresented Cremeans’s claims in a misleading manner, nor

engaged in any other sanctionable misconduct, the court declines

the request to bar or preclude the motion to dismiss and thus

denies plaintiff’s motion (Doc. No. 18).

Motion to Dismiss (Doc. No. 12)

The defendants move to dismiss the complaint, based on

sovereign immunity and qualified immunity, and for failure to

state a claim upon which relief can be granted under Fed. R.

Civ. P. 12(b)(6).

I. Standard

When ruling on a Rule 12(b)(6) motion based on the failure

to state a claim or the defense of qualified immunity, the court

must “‘accept as true all well-pleaded facts alleged in the

complaint and draw all reasonable inferences therefrom in the

[plaintiff’s] favor.’” Lemelson v. Bloomberg L.P.,

(1st Cir. 2018) (citation omitted). Courts may augment those

2 pleaded facts and inferences with information from “documents

incorporated by reference into the complaint, matters of public

record, and facts susceptible to judicial notice.” Haley v.

City of Boston,

(1st Cir. 2011). Focusing on

the non-speculative, non-conclusory facts and reasonable

inferences, the court must ask “whether it is plausible, as

opposed to merely possible, that plaintiff’s complaint narrates

a claim for relief.” Lemelson,

(citation

omitted).

II. Background 1

In 2005, Cremeans was convicted of two counts of aggravated

felonious sexual assault and two counts of endangering the

welfare of a child. The charges against Cremeans “stemmed from

sexual assaults [he] perpetrated against his stepchildren . . .

who were as young as four and five years old . . . when the

assaults first began.” State v. Cremeans, Nos. 216-2004-CR-

01243 et al. (N.H. Super Ct., Hillsborough Cty. June 6, 2017)

(Doc. No. 1, at 41). Cremeans was sentenced to a term of

incarceration, and his sentencing order provided that he was to

1Thefacts recited in this section come from plaintiff’s complaint, the documents he attached to it, see Fed. R. Civ. P. 10(c) (“written instrument that is an exhibit to a pleading is a part of the pleading for all purposes”), and matters susceptible to judicial notice.

3 have no unsupervised contact with minors under the age of

seventeen. See

When Cremeans first arrived at the NHSP, prison officials

approved a visitor list for Cremeans that included his two minor

daughters. In 2008, his two-year-old grandson, born after

Cremeans was incarcerated, was added to his visitor list.

Cremeans received visits from his grandson accompanied by the

boy’s mother several times before February 2017, when Cremeans

was informed that NHSP Warden Michael Zenk had removed the

grandson from his visitor list. An NHSP Unit Manager advised

Cremeans that his grandson had been removed to enforce the

provision in his sentencing order that he have no unsupervised

contact with minors.

Cremeans moved in the sentencing court to vacate the no-

contact provision in his sentence. While the Superior Court

granted that motion and struck the provision in June 2017, that

court also expressly noted that it did not “make any finding

with respect to the New Hampshire Department of Corrections’

authority to place limitations on [Cremeans’s] contact with

third persons, including those covered by the no-contact

provisions at issue, while he serves his sentence.” Cremeans,

slip op. at 3 (Doc. No. 1, at 43).

Following the issuance of that Superior Court order,

Cremeans renewed his efforts to have his grandson restored to

4 his visitor list. On July 28, 2017, New Hampshire Department of

Corrections (“DOC”) Victim Services Coordinator Nichole Kipphut

responded to two Inmate Request Slips (“IRSs”) Cremeans had

submitted, as follows:

After review of all information available [and] in light of the visiting room policy [and] the DOC’s authority to restrict visitor access to offenders, including minor children, even if the Sentencing Order does not explicitly prohibit contact, it has been decided to prohibit your contact [with] minor children until you have made arrangements for a trained chaperone to be present during visits [with] minors. Please review the “Re-Entry Guide” or talk [with the Intensive Sexual Offender Treatment program] regarding community treatment providers, such as RTT Associates, who offer a chaperone program.

July 28, 2017 IRS Resp. (Doc. No. 1, at 47).

Cremeans filed what he characterized as a first-level

grievance with NHSP Major Jon Fouts to complain about Kipphut’s

response to his IRSs. In his response, Fouts told Cremeans that

he did “not have supervisory control over Ms. Kipphut and [could

not] redirect her actions.” Aug. 1, 2017 IRS Resp. (Doc. No. 1,

at 48). Fouts further informed Cremeans that the proper way to

appeal Kipphut’s decision was to file a grievance with the

Warden. See

Cremeans then filed a grievance with Warden Zenk. The

Warden denied that grievance, stating:

Ms. Kipphut . . . has acted within the scope of her authority in determining that a properly trained chaperone must be present in order for your grandson to visit you at this facility. Her decision takes

5 into account that your offense behavior involved the sexual abuse of minors and the fact that you have not completed the Sex Offender Treatment Program at this facility. Your objection to this increased restriction is without merit. While a resident is incarcerated, the DOC has full control over all visitors to the prison property. This control extends to restricting any visitors that might jeopardize security or safety. . . . [B]ecause the DOC has the ability to restrict visitor access, it is within its authority to prohibit a resident from seeing a minor if the security or safety of the institution or an individual would be placed at risk. As set forth above, the DOC has the authority to restrict visitor access to its residents. That restriction may extend to any person, including minor children, even if a resident’s mittimus does not explicitly prohibit contact between the parties.

Aug. 6, 2017 Resp. to Grievance (Doc. No. 1, at 50) (citing

-H:13, VI; N.H. Code Admin. R. COR

305.02(d); DOC Policy and Procedure Directive (“PPD”) 7.09,

III).

Cremeans appealed Warden Zenk’s decision to DOC

Commissioner William Wrenn. Defendant Christopher Kench denied

that appeal on the Commissioner’s behalf.

Cremeans has not alleged whether he has taken any steps to

find a trained chaperone to satisfy the prison’s condition for

allowing Cremeans to resume contact visits with his grandson,

and Cremeans has not otherwise stated that he is unable to

secure the services of a trained chaperone. Since March 2018,

DOC rules have provided: “Persons under departmental control who

are incarcerated for crimes committed against children or have a

6 history of crimes against children, may have visiting privileges

with children denied or further restricted.” N.H. Code Admin.

R. COR 305.02(m) (eff. Mar. 23, 2018).

III. Discussion

Cremeans asserts that defendants violated: (1) his First

Amendment right to familial association (Count I); (2) his

Fourteenth Amendment right to procedural due process (Count II);

and (3) his Fourteenth Amendment right to equal protection

(Count III). Defendants move to dismiss on multiple grounds,

each of which is discussed below.

A. Eleventh Amendment (Official Capacity Damages Claims)

Defendants argue that the claims for damages that Cremeans

asserts against them in their official capacities should be

dismissed on grounds of sovereign immunity. The Eleventh

Amendment bars claims for damages asserted against state

officials sued in their official capacities unless the state has

waived its sovereign immunity. See Town of Barnstable v.

O’Connor,

(1st Cir. 2015); Barrett v. Coplan,

(D.N.H. 2003) (Section 1983 does not

abrogate sovereign immunity, and state has not waived it). All

of Cremeans’s damages claims asserted against the defendants in

their official capacities are dismissed.

7 B. Individual Capacity Claims

1. Familial Association Claim (Count I)

In Count I, Cremeans claims that the defendants violated

his federal constitutional right to familial association “by

interfering with [his] visits with his grandson by removing

[his] grandson from [his] visiting list without cause, and for

failing to re-instate [his] grandson to [his] visiting list.”

Compl. ¶ 39 (Doc. No. 1). 2 Given that Cremeans received notice

that, beginning on July 28, 2017, he could have visits from his

grandson so long as he arranged for the attendance of a trained

chaperone, Count I is best understood as a claim that defendants

violated Cremeans’s right to association by: (1) taking his

grandson off the visitor list for six months (from February 2017

through July 2017); then, (2) beginning on July 28, 2017,

restoring Cremeans’s ability to be visited by his grandson, but

only in the presence of a trained chaperone.

2Cremeans frames Count I as a First Amendment claim, while defendants argue that a right to familial association arises under the substantive due process component of the Fourteenth Amendment. There is no need for this court to resolve that issue in this Order. Cf. Schwarz v. Lassen Cnty. ex rel. Lassen Cty. Jail, No. 2:10-CV-03048-MCE-CMK,

, at *31,

, at *11 (E.D. Cal. Sept. 24, 2013) (“Given that there are no clear standards that apply to a claim for interference with the right to familial association in violation of the First Amendment, the Court finds it appropriate to import the standards that apply to other associational freedoms claims” arising under the Fourteenth Amendment.).

8 a. Qualified Immunity

Defendants argue that if Cremeans has a right to

unchaperoned visits with his grandson (a point they do not

concede), Cremeans’s claims for damages against all of the

defendants in their individual capacities are barred by the

doctrine of qualified immunity because such a right was not

clearly established in 2017. Qualified immunity shields

individual officers from claims for damages “‘unless (1) they

violated a federal statutory or constitutional right, and (2)

the unlawfulness of their conduct was clearly established at the

time.’” Hill v. Walsh,

(1st Cir. 2018) (quoting

Dist. of Columbia v. Wesby,

(2018) (internal

quotation marks omitted)).

[W]hether the law was clearly established at the time of the incident[] is itself divisible into two inquiries. First, the plaintiff must identify either controlling authority or a consensus of persuasive authority sufficient to put an officer on notice that his conduct fell short of the constitutional norm. Second, the plaintiff must show that an objectively reasonable officer would have known that his [or her] conduct violated the law.

Conlogue v. Hamilton,

(1st Cir. 2018)

(citations omitted).

Because qualified immunity is intended to protect all but the plainly incompetent or those who knowingly violate the law, the existing precedent at the time of the officers’ conduct must be clear enough that every reasonable official would interpret it to bar the

9 conduct at issue. Although plaintiffs are not required to identify controlling precedent with identical[] facts, . . . clearly established law must be sufficiently particularized to serve as a fair and clear warning that the officers’ conduct is unconstitutional.

Hill, 884 F.3d at 21–22 (internal quotation marks and citations

omitted) (emphasis in original); see also White v. Pauly,

(2017). “When a defendant invokes qualified

immunity, the burden is on the plaintiff to show that the

defense is inapplicable.” Escalera-Salgado v. United States,

(1st Cir. 2018).

b. Six-Month Ban on Visits

Plaintiff has identified neither controlling authority, nor

a consensus of persuasive authority from other jurisdictions

that would put New Hampshire prison officials on notice in 2017

that taking a minor grandchild’s name off a convicted sex

offender’s visitor list for a period of months would violate

that inmate’s federal rights. In Overton v. Bazzetta, the

leading Supreme Court case concerning restrictions on prisoners’

visits with children, the Court considered whether inmates’

associational rights were violated by a prison policy that

permanently banned all visits from prisoners’ young nieces and

nephews (for no proffered reason other than to reduce the number

of and potential for disruption caused by children visiting the

10 prison), while allowing visits from the inmates’ minor siblings,

children, and grandchildren, if those minors were accompanied by

a parent or legal guardian.

(2003). The

Court in Overton found that the restrictions on visits with

children were reasonably related to legitimate safety and

security interests.

.

While the restrictions here are not identical to those in

Overton, that fact is not determinative of whether the law in

2017 was clearly established, with respect to the validity of a

six-month ban on contact visits with a grandchild. There is no

First Circuit case on the issue. The courts that have addressed

similar restrictions in other jurisdictions, following Overton,

have generally concluded that the pertinent law is not clearly

established. See, e.g., Cleveland v. Martin,

(10th Cir. 2014) (defendants were entitled to qualified

immunity as to claim that they violated inmate’s right of

association with his minor children when they were removed from

his visitor list); Dunn v. Castro,

(9th Cir.

2010) (reasonable officer could have concluded that prisoner who

was believed to have engaged in improper sexual conduct with a

minor while incarcerated could be temporarily deprived of his

visitation privileges with his own children); Flynn v. Burns,

(E.D. Wis. 2018) (prison official “had

no definitive rule in 2016 prohibiting him from issuing a no-

11 contact order that banned all contact between [the inmate]

and his daughter for a one-year period” based solely on the

mother’s request); see also Wirsching v. Colorado,

(10th Cir. 2004) (prison officials did not violate

inmate’s First and Fourteenth Amendment rights “in refusing to

allow visits between a convicted sex offender who refused to

comply with the requirements of the treatment program and his

child,”); cf. Williams v. Ozmint,

, 807–08 (4th Cir.

2013) (complete suspension of inmate’s visitation privileges for

two years did not violate any clearly established constitutional

right); Malavé v. Weir, No. 3:16-cv-00009 (JAM),

, at *21,

, at *7 (D. Conn. Jan. 22,

2018) (“there is no clearly established constitutional right of

a prisoner . . . against the suspension by prison officials of

in-person visitation or telephone communications [with inmate’s

spouse] for a period of as long as eight months”), aff’d,

(2d Cir. 2019).

Given the holdings in cases such as Wirsching and Dunn, and

noting that among district court cases, courts have generally

concluded that the law was unclear, this court concludes that

there is no controlling law and no consensus of persuasive

authority indicating that a temporary ban on visits between a

convicted sex offender and a minor child would violate that

inmate’s rights, particularly where the inmate’s sentencing

12 order for most of that time period included a no-contact

provision. Due to that lack of clarity in the law, reasonable

prison officials in New Hampshire in 2017 would not be alerted

that it would be unlawful to take away Cremeans’s ability to

have contact visits with his grandson for a period of

approximately six months. Accordingly, as to the removal of the

grandchild from Cremeans’s visitor list that lasted from

February 2017 until the trained chaperone restriction was

imposed in July 2017, defendants are shielded from liability

under Count I by the doctrine of qualified immunity.

c. Trained Chaperone Requirement

The Overton decision provides a set of factors that courts

consider in assessing whether a restriction like the trained

chaperone requirement is consistent with an inmate’s right of

association. As the Court noted in Overton, there can be no

question that “[p]rotecting children from harm is . . . a

legitimate goal” of prison administrators, and that prisons have

“valid interests in . . . protecting child visitors from

exposure to sexual or other misconduct.”

. The

requirement that a trained chaperone be present when a child

visits with a convicted sex offender is rationally related to

that legitimate interest, as it places a specially trained

observer near the visit to watch for issues that might arise.

13 Furthermore, the trained chaperone requirement does not bar

Cremeans from seeing his grandson; it only bars him from contact

visits with his grandson outside of the presence of a chaperone.

Cremeans’s pleadings indicate that his grandson is approaching

his teenage years, and nothing in the record indicates that

Cremeans has been barred from engaging with his grandson using

other effective means of communicating with a child of that age,

such as letters and phone calls.

As to “the impact that accommodation of the asserted

associational right would have on guards, other inmates, the

allocation of prison resources, and the safety of visitors,”

, the documents filed as attachments to the complaint

suggest that defendants, at the time they made the decisions

challenged here, believed they could not adequately supervise

such visits, while maintaining safety and security at the

staffing levels at that time. Accommodating Cremeans’s desire

for visits without a trained chaperone, therefore, could have a

negative impact on NHSP safety and security resources.

Finally, Cremeans has not pleaded facts that show, and the

court cannot identify, any “obvious regulatory alternative that

fully accommodates the asserted right while not imposing more

than a de minimis cost to the valid penological goal.”

(citation omitted). Cremeans has suggested that the current

staffing levels in the visiting room and supervision by his

14 grandson’s mother is sufficient to accommodate the prison’s

interests. However, prison officials have determined otherwise,

and decisions regarding staffing and the supervisory

requirements of a prison’s contact-visit room are matters

generally entrusted to prison officials’ expertise. Courts must

accord “substantial deference to the professional judgment of

prison administrators, who bear a significant responsibility for

defining the legitimate goals of a corrections system and for

determining the most appropriate means to accomplish them.”

.

Therefore, the relevant factors assessed at this stage of

the case, on balance, weigh in favor of finding the trained

chaperone requirement to be reasonably related to a legitimate

penological interest in safety and security. The Rule 12(b)(6)

motion is properly granted as to Count I on that ground. And

even if the court were to conclude that Overton’s balance of

relevant factors is best calibrated after discovery, dismissal

would still be warranted now. Due to the absence of controlling

law and the lack of a consensus of appellate court decisions

from other jurisdictions finding in favor of any inmate on such

issues, a reasonable prison official in 2017 would not be

alerted that it would be unlawful to allow visits between a

convicted sex offender and his grandchild to occur only in the

presence of a trained chaperone. Accordingly, the court grants

15 defendants’ motion to dismiss Count I as to both the six-month

ban on visits and the trained chaperone requirement.

2. Due Process Claim (Count II)

Defendants argue that plaintiff’s procedural due process

claim (Count II) fails to state a claim upon which relief can be

granted, and that defendants are shielded by qualified immunity

as to that claim. 3

The procedural protections of the Due Process Clause of the

Fourteenth Amendment are triggered if there is a deprivation of

a protected interest in life, liberty, or property. See Mathews

v. Eldridge,

(1976). “A liberty interest may

arise from the Constitution itself, by reason of guarantees

implicit in the word ‘liberty.’” Wilkinson v. Austin,

(2005) (citations omitted). Protected interests may

also arise from state laws and regulations, but the liberty

3Cremeans has not pleaded facts stating a substantive due process claim upon which relief can be granted, arising out of the removal of his grandson from his visitor list in February 2017 or the imposition of a trained chaperone requirement beginning in July 2017. Cf. S. Commons Condo. Ass’n v. Charlie Arment Trucking, Inc.,

(1st Cir. 2014) (to state claim that executive action violates substantive due process, plaintiff must allege facts showing that conduct “objectively ‘shocks the conscience’”; even bad faith is not necessarily enough (citation omitted)). The restraints at issue, imposed on an inmate convicted of sex offenses involving minors, do not amount to restrictions that shock the conscience.

16 interests of prisoners are subject to the limitations set forth

in Sandin v. Conner,

(1995). See Wilkinson,

.

Under Sandin, the court considers whether the restrictions

at issue impose an “‘atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.’”

Wilkinson,

(quoting Sandin,

).

The Due Process Clause itself does not provide Cremeans with a

protected liberty interest that could form the basis of a due

process claim, as the restrictions on visits do not exceed the

scope of his sentence in “such an unexpected manner as to give

rise to protection by the Due Process Clause of its own force.”

Sandin,

; cf. Ky. Dep’t of Corr. v. Thompson,

(1989) (“The denial of prison access to a

particular visitor is well within the terms of confinement

ordinarily contemplated by a prison sentence, and therefore is

not independently protected by the Due Process Clause.”

(internal citation and quotation marks omitted)).

Cremeans’s attempt to draw a protected liberty interest out

of the terms of the terminated consent decree in Laaman v.

Helgemoe, Civ. No. 75-cv-258 (D.N.H.), and the PPDs, is

similarly unavailing. The terminated consent decree’s

provisions, having become part of a settlement agreement that

may be enforced in the state courts, are not independently

17 enforceable here. 4 And to the extent the terminated consent

decree or the PPDs are offered here as the source of a protected

liberty interest, post-Sandin, neither they nor other sources of

state law can generally create protected liberty interests

subject to the due process requirements of the Fourteenth

Amendment, unless Sandin’s “atypical and substantial hardship”

standard is met. See, e.g., Dominique v. Weld,

(1st Cir. 1996) (after noting that settlement agreement did

not appear to impose relevant duties upon prison officials,

court further noted that restrictions at issue, in any event,

“did not meet Sandin’s threshold test of working a ‘significant

and atypical hardship in relation to the ordinary incidents of

prison life’” (citation omitted)).

There are many cases concerning temporary bans on inmates’

contact visits with family members, which underscore that the

short-term ban on Cremeans’s grandson’s visits in 2017 was not

an “atypical hardship” of the kind contemplated by Sandin. See,

e.g., Zamora v. Thaler,

(5th Cir. 2011)

(“no constitutional basis for [inmate’s] complaint that her

mother was removed from the prison visitation list without a

4The July 6, 2001 Order in Laaman terminated federal court jurisdiction over the consent decree in that case and provided that the consent decree’s terms, as modified by the parties’ settlement agreement, would be enforceable in the state courts. See Endorsed Order, Laaman, Civ. No. 75-cv-258 (D.N.H. July 6, 2001) (approving stipulation of dismissal, ECF No. 531).

18 formal hearing”); Ware v. Morrison,

, 387-88 (8th

Cir. 2002) (“loss of visitation privileges is within the

ordinary incidents of confinement and cannot be considered an

atypical and significant hardship”); Bostrom v. Rowland, No.

1:15-CV-336,

, at *18,

, at *8 (W.D. Mich. July 28, 2015) (“Plaintiff has no

liberty interest in the visitor restriction that permanently

prohibited Plaintiff’s mother from visiting.”); Harrison v.

Pittman, No. 1:09-CV-333,

, at *16,

, at *5-*6 (W.D. Mich. July 8, 2009) (“temporary

deprivation of visitation privileges” for inmate’s fiancé was

not atypical or significant hardship); cf. also, e.g., Charriez

v. Sec’y, Fla. Dep’t of Corr.,

(11th Cir.

2015) (one-year disciplinary suspension of visitation privileges

was not atypical hardship); Flynn v. Burns,

(E.D. Wis. 2018) (“procedural due process probably affords

[inmate] no relief” with respect to due process claim

challenging one-year ban on contact visits with his daughter,

“because of the limitations on the types of interests that are

protected”) (collecting cases).

Further, adult supervision requirements for minor

children’s visits with inmates are also not atypical in prison

settings. See, e.g., Overton,

(evaluating

validity of requirement that parent or legal guardian accompany

19 and supervise children visiting inmates). Cremeans’s

allegations regarding a “trained chaperone” requirement, without

more, do not state a claim that the requirement imposed on his

visits with his grandson was an atypical and significant

hardship, relative to the ordinary incidents of prison life.

For those reasons, Count II fails to state a claim upon which

relief can be granted. 5 Accordingly, the court grants

defendants’ motion to dismiss Count II.

3. Equal Protection Claims (Count III)

Liberally construed, in light of clarifications provided in

plaintiff’s objection to defendants’ motion to dismiss,

Cremeans’s claim in Count III asserts that defendants violated

his Fourteenth Amendment right to equal protection: (1) by

requiring him to have a trained chaperone present to receive

visits from his grandson while not imposing such a requirement

on inmates convicted of murder or other violent crimes; and (2)

by imposing that restriction on Cremeans’s visits but not

5 Plaintiff also points to DOC regulations regarding the notice that must be provided to visitors who are denied access to visits with a prisoner. Defendants argue that those rules do not apply as Cremeans’s grandson was not denied access because of the grandson’s failure to comply with DOC facility rules. This court agrees. But even if the defendants had a duty under those regulations to provide notice to the grandson, Cremeans, as a pro se plaintiff, may not assert claims on behalf of anyone other than himself in this court. See

; LR 83.2(d).

20 similarly limiting the ability of other sex offenders to receive

visits from children.

a. Comparison with Violent Offenders

Cremeans argues that inmates convicted of murder and other

violent crimes have less restrictions on their visits with

children than Cremeans, a convicted sex offender. “The

Fourteenth Amendment’s Equal Protection Clause prohibits a state

from treating similarly situated persons differently because of

their classification in a particular group.” Mulero-Carrillo v.

Román-Hernández,

(1st Cir. 2015) (citations

omitted).

Generally, for an equal protection claim to survive a motion to dismiss, a plaintiff must allege facts plausibly demonstrating that compared with others similarly situated, [the plaintiff was] selectively treated . . . based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.

(internal quotation marks and citations omitted;

alterations in original). Where “there is no implication of a

fundamental right being affected,” and petitioner does not claim

membership in a suspect class, the state actor’s “decisions

require only rational basis review.”

(citations omitted).

“Sexual offenders are not a suspect, or quasi-suspect

class, so as to entitle a sex offender to heightened scrutiny of

21 prison officials’ allegedly discriminatory acts under the equal

protection clause.” Sweeney v. N.H. State Prison, No. 12-CV-

276-SM,

, at *5,

, at

*2 (D.N.H. Jan. 25, 2013) (citation omitted)), R&R approved,

, at *1,

, at *1

(D.N.H. Feb. 21, 2013). Cremeans’s “status as a [child] sex

offender is undoubtedly a ‘relevant aspect’ of any difference”

in access to visits from minors, “as compared to inmates

convicted of other offenses.”

,

at *6,

, at *2. Therefore, Cremeans’s “assertion

that non-sex offenders are treated differently than sex

offenders . . . does not suffice to allow the court to find that

he was treated differently than others similarly situated in all

relevant aspects” and “does not otherwise establish an

actionable claim of discrimination in violation of his rights

under the Fourteenth Amendment.”

, at *6-*7,

, at *2. Following Sweeney, this

court concludes that Cremeans’s allegations regarding the

preferential treatment of other inmates with respect to visits

does not state a Fourteenth Amendment claim upon which relief

can be granted. Accordingly, the court dismisses that aspect of

Cremeans’s equal protection claim.

22 b. Class of One

The remainder of Count III alleges differential treatment

among sex offenders, in effect asserting that Cremeans suffers

discriminatory treatment as a member of a “class of one.” To

establish a class-of-one equal protection violation, the

plaintiff must prove that he was “intentionally treated

differently from others similarly situated and that there is no

rational basis for the difference in treatment.” Engquist v.

Or. Dep’t of Agric.,

(2008).

Plaintiff, who was convicted of sex offenses involving

minors, has filed an affidavit of a fellow inmate, also serving

a long sentence following a conviction of sex offenses against a

minor, who avers that he has been allowed visits with his niece

and nephew without restriction since 2006. Plaintiff has

asserted that those visits have occurred on a monthly basis with

only the children’s grandparents present, without a trained

chaperone. Cremeans has not alleged, however, that the other

inmate is similarly situated with Cremeans in all relevant

respects, including, for example, whether there are relevant

differences relating to other aspects of the inmates’ offense

characteristics or disciplinary records that could warrant

different treatment of contact visits with young children.

Moreover, while Cremeans’s objection to the motion to dismiss

asserts that the other inmate’s visits have occurred on a

23 monthly basis, Cremeans has not pleaded facts in the complaint

indicating that those visits have been allowed to recur without

any restrictions since Cremeans’s grandson’s visits became

restricted. To that extent, Cremeans has failed to state a

class-of-one equal protection claim upon which relief can be

granted.

Nevertheless, this court cannot rule out the possibility

that Cremeans could plead facts showing that although he and

that particular inmate, or some other as-yet unnamed inmate, are

similarly situated in all relevant respects, they have not been

treated the same way during the relevant time period, without a

rational basis for the differential treatment. For that reason,

this court grants Cremeans leave to file an amended complaint to

allege additional facts to state a viable class-of-one equal

protection claim.

Accordingly, the court grants defendants’ motion to dismiss

Count III, but declines to direct entry of judgment at this

time. Cremeans is granted leave to file an amended complaint,

within thirty days of the date of this Order, pleading new

facts, if he can, showing that although Cremeans and other sex

offenders are similarly-situated in all relevant respects, they

have been treated differently in the relevant time period

without a rational basis for the difference, with respect to

their ability to have unchaperoned contact visits with minors.

24 Request for Injunctive Relief

In addition to seeking declaratory relief and damages,

plaintiff’s complaint also asks the court to:

Issue an Emergency Injunction requiring Defendants to re-instate Plaintiff’s grandson back onto his visiting list; [and]

Issue a Temporary Restraining Order requiring Defendants not to interfere with visits with Plaintiff and his grandson, nor to move Plaintiff from his current housing unit except for entry into the Sex Offender Treatment Program.

Compl. (Doc. No. 1) at 12.

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that

an injunction is in the public interest.” Glossip v. Gross,

(2015) (internal quotation marks and citation

omitted); see also Axia NetMedia Corp. v. Mass. Tech. Park

Corp.,

(1st Cir. 2018). The burden of proof is on

the movant. See Esso Std. Oil Co. v. Monroig–Zayas,

(1st Cir. 2006). To demonstrate a likelihood of success

on the merits, a plaintiff must show “‘more than mere

possibility’ of success — rather [he] must establish a ‘strong

likelihood’ that [he] will ultimately prevail.” Sindicato

Puertorriqueño de Trabajadores, SIEU Local 1996 v. Fortuño,

(1st Cir. 2012) (citation omitted).

25 Here, plaintiff has not demonstrated a likelihood of

success on any of his claims, for the reasons set forth in this

Order. Accordingly, plaintiff’s requests for preliminary

injunctive relief are denied without prejudice to his ability to

file a motion seeking such relief at a later stage of this case,

in connection with any amended complaint he files consistent

with this Order.

Conclusion

For the reasons detailed above:

1. Plaintiff’s motion to bar and preclude (Doc. No. 18)

is DENIED.

2. Defendants’ motion to dismiss (Doc. No. 12) is

GRANTED, without prejudice to plaintiff’s ability to file,

within thirty days, an amended complaint stating a “class of

one” equal protection claim, as set forth in this Order.

3. If plaintiff fails to file an amended complaint as

directed within the 30-day period allowed for him to do so, the

court will direct that judgment be entered in favor of

defendants forthwith, and this case will be closed.

4. Plaintiff’s request for preliminary injunctive relief,

set forth in the complaint (Doc. No. 1), is denied without

prejudice.

26 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

March 28, 2019

cc: Christopher Cremeans, pro se Scott Edward Sakowski, Esq.

27