Duquette v. Les Dolecal, et al.

2005 DNH 041

• Court: District Court, D. New Hampshire
• Decided: March 8, 2005
• Docket: CV-04-281-SM
• Status: Published

Opinion

Duquette v . Les Dolecal, et a l . CV-04-281-SM 03/08/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Randy J. Duquette

v. Civil N o . 04-281-SM Opinion N o . 2005 DNH 041 Les Dolecal, et a l .

REPORT AND RECOMMENDATION

Plaintiff Randy J. Duquette, an inmate at the New Hampshire

State Prison, alleges in this civil rights action that the

Defendants have violated his First Amendment rights under the

United States Constitution by requiring him to attend a Sex

Offender Program (“SOP”) that uses religiously-based methods.

The Court now has for consideration the Plaintiff’s motion for a

preliminary injunction to prevent interference with his legal

mail, spoliation of evidence and witness tampering (document nos.

8 and 1 1 ) . Defendants filed an objection. The motion was

referred to me to review and to prepare a report and

recommendation. The Court held a two-day evidentiary hearing on

December 1 7 , 2004 and March 3 , 2005. For the reasons set forth

herein, the Court finds that injunctive relief is not warranted. I. Interference With Legal Mail

Plaintiff alleges that since he filed this lawsuit the

Defendants have interfered with his legal mail. The Court

examined all of the correspondence from the Plaintiff in the

court’s file and determined that, with the exception of the

complaint and a letter that the Plaintiff alleges he sent on

December 1 1 , 2004, every other document that Plaintiff sent to

the court had arrived within two days of being sent. Therefore,

the Court finds that Plaintiff has not demonstrated that

injunctive relief is warranted on his mail interference claim.

II. Spoliation of Evidence

Plaintiff alleges that the Defendants have removed and

destroyed evidence that would support his claim that the SOP uses

religiously-based methods. In particular, Plaintiff alleges that

the Defendants removed and destroyed banners with religious-based

content from the walls in the SOP area after Plaintiff filed this

lawsuit. Plaintiff cites as evidence a banner that previously

hung on the wall with the word “Faith,” and a banner with the

words “The Longest Journey Begins With A Single Step.”

Defendants do not dispute that the banners Plaintiff cites

were on the walls in the SOP area, along with other banners with

2 the words “Trust” and “Accountability,” and that those banners

were taken down after three days. Defendants contend, however,

that the banners have a secular purpose and were taken down

because they had been put up without prior approval contrary to

the prison’s protocol. Defendants demonstrated that the banners

in question had not been destroyed, as Plaintiff alleged, but

rather were in the custody of Judy Mann, an SOP counselor. M s .

Mann displayed the banners in court during her testimony.

Defendants have destroyed evidence, and that injunctive relief is

not warranted on Plaintiff’s spoliation of evidence claim.

III. Witness Tampering

The last issue that the court considered was the Plaintiff’s

allegation that the Defendants have engaged in witness tampering.

Plaintiff alleges that inmates in the SOP, including Robert

Montgomery, have been forced to take polygraph examinations to

determine whether they had spoken to Plaintiff about the subject

of this lawsuit. While other inmates testified at the hearing,

Robert Montgomery was not present. Another inmate, James

Trautwein, testified that both he and Montgomery were required to

take a polygraph examination to determine whether they had

3 disclosed information about an inmate who was removed from the

SOP.1 Trautwein did not indicate that the examination contained

questions pertaining to this lawsuit. Plaintiff’s allegation

regarding Defendants’ use of the polygraph to tamper with

witnesses has not been substantiated.

Three of Plaintiff’s witnesses, inmates Robert Justus, James

Trautwein and William Edmondson, testified that the members of

the SOP staff use coercive and abusive tactics. But none of

those witnesses indicated that they were told either directly or

indirectly that they should not testify in this case or that they

should alter their testimony.

William Edmondson testified that he felt intimidated by

other inmates in the SOP because of his willingness to speak to

the Plaintiff about the subject of this lawsuit. Edmondson

testified that other inmates have accused Plaintiff of trying to

have the SOP taken away. Edmondson also testified that an SOP

staff member named Ruth or Kim Kravacas commented that Edmondson

had been “running his mouth about the program” after she learned

that he would be appearing as a witness in this case. According

1 SOP participants are required to sign confidentiality agreements wherein the participants agree to not disclose personal clinical information about other SOP participants.

4 to Edmondson, Kravacas ordered him to report everything that

occurred in court to her and to his SOP group after he returned

from court. Edmondson took these comments as indicative that

some form of retaliation might be forthcoming because of his

willingness to testify.

While the Court finds Edmondson’s testimony credible, and

has warned the Defendants not to retaliate against any of the

witnesses in this case, it does not appear to the Court that the

evidence presented demonstrates that the Defendants have engaged

in witness tampering. Accordingly, the Court finds that

Plaintiff has not demonstrated that injunctive relief is required

to prevent witness tampering.

Much of the evidence that Plaintiff presented during the

hearing went to the underlying merits of this lawsuit. Based on

what was presented, there appears to be little doubt that

religiously-based teachings are, as Plaintiff contends, a

fundamental and essential part of the SOP. Therefore, it appears

to the Court that the Plaintiff is likely to succeed on the

merits of his underlying claim. For purposes of consideration of

the issues presented at the evidentiary hearing, however, the

Court finds that Plaintiff has not demonstrated that interim

5 injunctive relief is warranted. Therefore, the Court recommends

that the motion for a preliminary injunction (document nos. 8 and

11) be denied.

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v . Gordon, 979 F.2d 1 1 , 13-14 (1st Cir. 1992); United

States v . Valencia-Copete, 792 F.2d 4 , 6 (1st Cir. 1986).

James R. Muirhead United States Magistrate Judge Date: March 8 , 2005

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