Hurley v. Messenger CV-97-13-SD 06/24/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Thomas S. Hurley, Jr.
v. Civil No. 97-13-SD
Lance Messenger, et al
O R D E R
Thomas Hurley has objected to a Report & Recommendation
(R & R) of the magistrate judge. Document 11. The R & R
suggests dismissal of the complaint with the exception of an
Eighth Amendment claim against three defendants. Document 9.
The court has conducted the reguisite de novo review of the
R & R. 28 U.S.C. § 636(b)(1)(C); Elmendorf Grafica, Inc. v. D.S.
America (East), Inc., 48 F.3d 46, 49-50 (1st Cir. 1995).
1. Background
Hurley is currently an inmate at the New Hampshire State
Prison (NHSP). Claiming violation of his civil and
constitutional rights based on perceived deprivation of medical
care, he has here sued a number of defendants, including Superior
Court Justice Dalianis, Commissioner of Corrections Paul Brodeur,
and New Hampshire Parole Board Members Robert F. Hamel, John
Eckert, and E. Leonard Zeifert, together with NHSP employees Lance Messenger, Anne Melvin, Wayne Brock, Paul McAuliffe,1 Roman
Aquizap, Dr. Fellows, and Irene Lavois. The thrust of
plaintiff's complaint is that he has been unlawfully denied
participation in a mental health sex offender program (SOP)
necessary for parole.
On reference to the magistrate judge, the matter was
reviewed, and the challenged R & R issued. The magistrate judge
recommended dismissal as to the defendants Dalianis, Hamel,
Eckert, and Zeifert on the ground of absolute immunity, and
dismissal on other grounds as to all remaining defendants except
Messenger, McAuliffe, and Aquizap.
2. Discussion
a. Absolute Immunity
The magistrate judge ruled that the state court judge and
the parole board members were entitled to dismissal on the
grounds of absolute immunity. Plaintiff's objection is that the
judge's order that he complete an SOP plan somehow violated his
rights to equal protection. As the order neither burdens a
fundamental right nor targets a suspect class, and as it bears a
1The complaint spells the name of this defendant as "Mculff", but in its acceptance of service (document 13), the Office of the New Hampshire Attorney General spells it as "McAuliffe", and the court accordingly adopts the latter spelling.
2 rational relation to a legitimate end, Romer v. Evans, ___ U.S.
, ___ , 116 S. C t . 1620, 1627 (1996), it is not violative of
the Equal Protection Clause. And as the order was issued in the
course of judicial proceedings, the judge is entitled to absolute
immunity. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978).
Similarly, it is well established that parole board members
enjoy absolute immunity from civil liability when performing
their quasi-judicial functions. Johnson v. Rhode Island Parole
Bd. Members, 815 F.2d 5, 8 (1st Cir. 1987). Accordingly, the
magistrate judge did not err in recommending dismissal of the
complaint as to Judge Dalianis and defendants Hamel, Eckert, and
Zeifert.
b. Eighth Amendment
The magistrate judge ruled that, fairly and liberally read,
plaintiff's complaint stated an Eighth Amendment cause of action
only against defendants Messenger, McAuliffe, and Aquizap.
Similarly read by the court, this ruling is correct.
It is well established that the Eighth Amendment applies to
cases where prison officials demonstrate "deliberate
indifference" to the serious medical needs of prisoners. Helling
v. McKinney, 509 U.S. 25, 32 (1993); Mahan v. Plymouth Countv
House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995) . And
3 "deliberate indifference" equates with subjective awareness on
the part of the prison official of an obvious, substantial risk
to an inmate's safety. Farmer v. Brennan, 511 U.S. 825, 836-37
(1994) .
As illuminated by the R & R, defendants Melvin, Brock,
Fellows, and Lavois, together with defendant Brodeur,2 exerted
efforts designed to assist rather than harm the plaintiff. That
these efforts might not have been as successful as plaintiff
wished does not mean that they can be considered as deliberately
indifferent to his needs. Where efforts are made to furnish
medical care, there can be no claim for deliberate indifference.
Harris v. Thigpen, 941 F.2d 1495, 1507 (11th Cir. 1991)
(collecting cases).
c. Due Process and Equal Protection
The magistrate judge ruled that the complaint does not
support violation of plaintiff's substantive or procedural due
process rights. To succeed on a substantive due process claim,
there must be conduct which "'shocks the conscience' or is
2In Brodeur's case, the magistrate judge correctly held that the allegations of the complaint failed to support a claim that Brodeur did not adequately train his staff or that he was otherwise deliberately indifferent to Hurley's mental health problems. See Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978); Bowen v. Citv of Manchester, 966 F.2d 13, 20 (1st Cir. 1992).
4 otherwise offensive to the 'concept of ordered liberty,'" Baker
v. McCollan, 443 U.S. 137, 147 (1979) (Blackmun, J., concurring)
(internal quotation omitted). Otherwise put, such conduct must
be violative of "'principles of justice so rooted in the
conditions and conscience of our people as to be ranked as
fundamental,'" Abany v. Fridovich, 862 F. Supp. 615, 620 (D.
Mass. 1994) (quoting Snyder v. Massachusetts, 291 U.S. 97
(1934)). Denying a prisoner multiple chances to complete a
rehabilitation program does not fall within the penumbra of a
subjective due process violation.
And absent a showing of deprivation of a liberty interest
sourced in the due process clause itself or the laws of the
states, Kentucky Pep't of Corrections v. Thompson, 490 U.S. 454,
460 (1988), there is no procedural due process violation.
Inmates of New Hampshire prisons have no constitutionally
protected liberty interest in parole, Wellington v. Corrections,
No. 96-189, slip op. at 4-5 (D.N.H. Dec. 30, 1996), and as
plaintiff has no liberty interest in parole. Stone v. Hamel, No.
91-386, slip op. at 3 (D.N.H. Apr. 8, 1994), he cannot succeed on
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Hurley v. Messenger CV-97-13-SD 06/24/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Thomas S. Hurley, Jr.
v. Civil No. 97-13-SD
Lance Messenger, et al
O R D E R
Thomas Hurley has objected to a Report & Recommendation
(R & R) of the magistrate judge. Document 11. The R & R
suggests dismissal of the complaint with the exception of an
Eighth Amendment claim against three defendants. Document 9.
The court has conducted the reguisite de novo review of the
R & R. 28 U.S.C. § 636(b)(1)(C); Elmendorf Grafica, Inc. v. D.S.
America (East), Inc., 48 F.3d 46, 49-50 (1st Cir. 1995).
1. Background
Hurley is currently an inmate at the New Hampshire State
Prison (NHSP). Claiming violation of his civil and
constitutional rights based on perceived deprivation of medical
care, he has here sued a number of defendants, including Superior
Court Justice Dalianis, Commissioner of Corrections Paul Brodeur,
and New Hampshire Parole Board Members Robert F. Hamel, John
Eckert, and E. Leonard Zeifert, together with NHSP employees Lance Messenger, Anne Melvin, Wayne Brock, Paul McAuliffe,1 Roman
Aquizap, Dr. Fellows, and Irene Lavois. The thrust of
plaintiff's complaint is that he has been unlawfully denied
participation in a mental health sex offender program (SOP)
necessary for parole.
On reference to the magistrate judge, the matter was
reviewed, and the challenged R & R issued. The magistrate judge
recommended dismissal as to the defendants Dalianis, Hamel,
Eckert, and Zeifert on the ground of absolute immunity, and
dismissal on other grounds as to all remaining defendants except
Messenger, McAuliffe, and Aquizap.
2. Discussion
a. Absolute Immunity
The magistrate judge ruled that the state court judge and
the parole board members were entitled to dismissal on the
grounds of absolute immunity. Plaintiff's objection is that the
judge's order that he complete an SOP plan somehow violated his
rights to equal protection. As the order neither burdens a
fundamental right nor targets a suspect class, and as it bears a
1The complaint spells the name of this defendant as "Mculff", but in its acceptance of service (document 13), the Office of the New Hampshire Attorney General spells it as "McAuliffe", and the court accordingly adopts the latter spelling.
2 rational relation to a legitimate end, Romer v. Evans, ___ U.S.
, ___ , 116 S. C t . 1620, 1627 (1996), it is not violative of
the Equal Protection Clause. And as the order was issued in the
course of judicial proceedings, the judge is entitled to absolute
immunity. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978).
Similarly, it is well established that parole board members
enjoy absolute immunity from civil liability when performing
their quasi-judicial functions. Johnson v. Rhode Island Parole
Bd. Members, 815 F.2d 5, 8 (1st Cir. 1987). Accordingly, the
magistrate judge did not err in recommending dismissal of the
complaint as to Judge Dalianis and defendants Hamel, Eckert, and
Zeifert.
b. Eighth Amendment
The magistrate judge ruled that, fairly and liberally read,
plaintiff's complaint stated an Eighth Amendment cause of action
only against defendants Messenger, McAuliffe, and Aquizap.
Similarly read by the court, this ruling is correct.
It is well established that the Eighth Amendment applies to
cases where prison officials demonstrate "deliberate
indifference" to the serious medical needs of prisoners. Helling
v. McKinney, 509 U.S. 25, 32 (1993); Mahan v. Plymouth Countv
House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995) . And
3 "deliberate indifference" equates with subjective awareness on
the part of the prison official of an obvious, substantial risk
to an inmate's safety. Farmer v. Brennan, 511 U.S. 825, 836-37
(1994) .
As illuminated by the R & R, defendants Melvin, Brock,
Fellows, and Lavois, together with defendant Brodeur,2 exerted
efforts designed to assist rather than harm the plaintiff. That
these efforts might not have been as successful as plaintiff
wished does not mean that they can be considered as deliberately
indifferent to his needs. Where efforts are made to furnish
medical care, there can be no claim for deliberate indifference.
Harris v. Thigpen, 941 F.2d 1495, 1507 (11th Cir. 1991)
(collecting cases).
c. Due Process and Equal Protection
The magistrate judge ruled that the complaint does not
support violation of plaintiff's substantive or procedural due
process rights. To succeed on a substantive due process claim,
there must be conduct which "'shocks the conscience' or is
2In Brodeur's case, the magistrate judge correctly held that the allegations of the complaint failed to support a claim that Brodeur did not adequately train his staff or that he was otherwise deliberately indifferent to Hurley's mental health problems. See Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978); Bowen v. Citv of Manchester, 966 F.2d 13, 20 (1st Cir. 1992).
4 otherwise offensive to the 'concept of ordered liberty,'" Baker
v. McCollan, 443 U.S. 137, 147 (1979) (Blackmun, J., concurring)
(internal quotation omitted). Otherwise put, such conduct must
be violative of "'principles of justice so rooted in the
conditions and conscience of our people as to be ranked as
fundamental,'" Abany v. Fridovich, 862 F. Supp. 615, 620 (D.
Mass. 1994) (quoting Snyder v. Massachusetts, 291 U.S. 97
(1934)). Denying a prisoner multiple chances to complete a
rehabilitation program does not fall within the penumbra of a
subjective due process violation.
And absent a showing of deprivation of a liberty interest
sourced in the due process clause itself or the laws of the
states, Kentucky Pep't of Corrections v. Thompson, 490 U.S. 454,
460 (1988), there is no procedural due process violation.
Inmates of New Hampshire prisons have no constitutionally
protected liberty interest in parole, Wellington v. Corrections,
No. 96-189, slip op. at 4-5 (D.N.H. Dec. 30, 1996), and as
plaintiff has no liberty interest in parole. Stone v. Hamel, No.
91-386, slip op. at 3 (D.N.H. Apr. 8, 1994), he cannot succeed on
a claimed liberty interest in unlimited chances at satisfying a
condition of parole. Sandin v. Conner, ___ U.S. ___ , , 115
S. C t . 2293, 2300 (1995).
Moreover, even were such liberty interest found to exist.
5 plaintiff's complaint, liberally and fairly read, fails to
suggest a due process violation. His multiple opportunities to
complete the SOP, his apparent completion of a different program,
and his recent evaluation by prison officials regarding his
ability to adhere to a rehabilitation program strongly belie any
such claim.
Finally, the complaint of homosexual discrimination does not
here serve to support a claim of denial of egual protection.
Again, there is no showing in the complaint that the challenged
action either burdens a fundamental right, targets a suspect
class, or bears no rational relation to a legitimate end. Romer
v. Evans, supra. Nor do the alleged facts show plaintiff to have
been the victim of invidious discrimination which would warrant
constitutional protection. Moreover, the alleged reason for
denial of parole--continued deviant sexual misconduct--advances
the legitimate state interest in protection of the public. New
Hampshire Revised Statutes Annotated 651-A:1.
3. Conclusion
For the reasons hereinabove outlined, the court overrules
the plaintiff's objection to the R & R and finds that the
magistrate judge correctly recommended dismissal of all claims
except those under the Eighth Amendment directed at defendants
6 Messenger, McAuliffe, and Aquizap. The R & R is accordingly
accepted without modification.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
June 24, 1997 cc: Thomas S. Hurley, Jr., pro se Suzanne M. Gorman, Esq.