UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Jonathan Andrew Perfetto
v. Case No. 18-cv-554-SE Opinion No. 2023 DNH 034 New Hampshire Department of Corrections Commissioner Helen Hanks et al.1
O R D E R
In this action, Plaintiff Jonathan Andrew Perfetto, a New
Hampshire Department of Corrections (“DOC”) prisoner, presently
housed at a state prison in Montana, asserts that in 2016, while
he was incarcerated at the New Hampshire State Prison (“NHSP”),
one or more of the defendants caused Perfetto to receive a
Merrimack County Superior Court (“MCSC”) order dismissing a
civil case Perfetto was litigating in that court twelve days
late. Perfetto asserts that, due to his late receipt of that
order, he was unable to file a timely motion with the MCSC to
reconsider its order of dismissal. Perfetto alleges that the
1 The defendants remaining in this case are New Hampshire State Prison employees: Lt. James Brown; Sgt. Patrick Bettens; Sgt. Robertson Murray; Cpl. Gerald Williams; Cpl. Stacie Lamontagne; Cpl. John/Jane Doe; and Mailroom Officer John/Jane Doe. The Doe defendants have neither been identified nor served in this matter. The Court has been advised that Bettens, who has not been served in this matter, is deceased. Other individuals named in the initial complaint (doc. no. 1) and first amended complaint (doc. nos. 5, 5-1) have been dismissed from this action. defendants’ actions delaying delivery of his legal mail violated
his First Amendment right to petition the government for a
redress of grievances and his Sixth Amendment right of access to
the courts.
Before the court for consideration are: the defendants’
motion (doc. no. 75) seeking to renew their original motion to
dismiss (doc. no. 26) the first amended complaint (doc. nos. 5,
5-1) (“FAC”); and their supplemental motion to dismiss (doc. no.
78) filed in response to Perfetto’s second amended complaint
(doc. no. 77) (“SAC”). For the reasons that follow, the court
grants the defendants’ supplemental motion to dismiss, and
denies the defendants’ motion to renew the original motion to
dismiss as moot.
Background Facts and Procedural History
I. Factual Background
On August 7, 2015, Perfetto filed a civil rights action in
the MCSC against a number of DOC employees, Perfetto v. Cascio,
No. 217-2015-cv-00397 (MCSC) (“Cascio”). Perfetto also filed
motions in Cascio asking the MCSC to waive the Merrimack County
Sheriff Department (“MCSD”) fee for serving process on the
defendants. The MCSC denied those motions, stating that it did
not have the authority to waive fees charged by the MCSD, and
that Perfetto could seek a waiver directly from the MCSD. It
2 also extended the period of time for Perfetto to serve the
defendants in Cascio.
On June 10, 2016, Perfetto filed a motion in Cascio asking
the MCSC to direct its clerk’s office to effect service. On June
13, 2016, in response to that motion, the MCSC ordered that
Perfetto could serve the NHSP defendants by certified mail and
extended his deadline to do so until July 20, 2016. Perfetto
states that he never received the June 13, 2016 Order.
On August 30, 2016, the MCSC found that Perfetto had
neither completed service on the Cascio defendants nor moved to
extend the deadline to do so, and dismissed the case on that
basis, citing New Hampshire Superior Court Rule 4(c).2 See doc.
2 New Hampshire Superior Court Rule 4(c) states:
Upon receipt of the Complaint and, if the filing fee is not waived, the filing fee, the court will process the action and provide plaintiff with the completed Summons for service. The Summons will identify: (i) the date the Complaint is filed; (ii) the court- ordered deadline for service; and (iii) a hearing date, if appropriate. Plaintiff will cause the Summons together with a copy of the Complaint to be served on defendant no later than the court-ordered deadline for service, service to be made as specified in RSA 510, or as otherwise allowed by law. Proof of service shall be filed with the court within 21 days of the court- ordered deadline for service. If a defendant is not served within the court-ordered deadline for service, the court shall dismiss the action with or without prejudice, as justice may require. N.H. Super. Ct. R. 4(c) (emphasis added).
3 no. 26-10. In this case, Perfetto asserts that each of the
defendants plays some role in delivering legal mail to NHSP
prisoners, and that one or more of them caused him to receive
his copy of the MCSC’s August 30, 2016 order twelve days late.
Perfetto does not identify the specific date he received the
August 30, 2016 order. Given his statement that the mail should
have taken one or two days, the court can reasonably infer that
he received the order on or about September 13, 2016. As a
result of the delay, Perfetto claims, he could not file a motion
to reconsider the order in compliance with the New Hampshire
Superior Court Rules.
Perfetto did file a late motion to reconsider the August
30, 2016 dismissal order, which was dated October 10, 2016 and
was received by the MCSC on October 14, 2016. In the motion to
reconsider, Perfetto, mistakenly believing that the MCSC had
dismissed Cascio because it had not received his June 7, 2016
motion for clerk service, asked the MCSC to allow him to
resubmit the motion for clerk service.
Perfetto did not, in his motion to reconsider, state that
he had received the August 30, 2016 order twelve days late. Nor
did he provide any other explanation for failing to file his
motion to reconsider until October 14, 2016, approximately one
month after he received the order. Additionally, Perfetto’s
motion to reconsider did not identify any “points of law or fact
4 that the court ha[d] overlooked or misapprehended.” See N.H.
Super. Ct. R. 12(e). On November 7, 2016, the MCSC denied
Perfetto’s motion to reconsider, finding that it was “untimely
and assert[ed] no ground for relief.” Doc. no. 26-12.
A month later, on December 8, 2016, Perfetto sought an
extension of time to object to the MCSC’s denial of his motion
for reconsideration, which the Court denied “as it raise[d] no
matters not previously considered by the Court.” Dec. 28, 2016
Order (MCSC) (doc. no. 26-2 at 4). Mr. Perfetto did not appeal
the MCSC’s dismissal of Cascio to the New Hampshire Supreme
Court (“NHSC”).
On March 26, 2018, Perfetto filed a motion in Cascio
seeking to reopen that matter, which the MCSC denied as
untimely. See Apr. 3, 2018 Order (MCSC) (doc. no. 26-2 at 4).
More than a year after that, Perfetto again sought to reopen
Cascio, and the MCSC again denied the request, stating “[t]he
Motion sets forth no basis of relief” and that “Plaintiff has
not complied with the Superior Court Rules.” June 10, 2019 Order
(MCSC) (doc. no. 26-2 at 4). It does not appear that Perfetto
ever attempted to file a new action in the MCSC raising the
claims he asserted in Cascio.
5 II. Procedural History
Perfetto filed his initial complaint (doc. no. 1) in this
case in June 2018, asserting multiple claims against numerous
defendants. In July 2019, Perfetto filed a motion to amend the
complaint (doc. no. 5). The court allowed the amendment and
deemed the FAC (doc. nos. 5, 5-1), to be the operative complaint
in this matter. After conducting preliminary review of the FAC,
the Court found that two claims, identified in the April 27,
2020 Report and Recommendation (“R&R”) as Claims 3(a) and 3(b),
could proceed in this case, and dismissed the other claims
asserted in the FAC. See Mar. 29, 2021 Order (doc. no. 48)
(approving Apr. 27, 2020 R&R (doc. no. 17)).
The defendants filed a motion to dismiss claims 3(a) and
3(b). See doc. no. 26. The court denied the motion to dismiss
without prejudice to the defendants’ ability to renew the motion
after the court resolved Perfetto’s request for court-appointed
counsel. See Mar. 19, 2021 Order. After the court denied
Perfetto’s motion for court-appointed counsel, see June 14, 2021
Order, the defendants moved to renew their motion to dismiss,
see doc. no. 56. Subsequently, Perfetto filed a motion (doc. no.
60) seeking leave to file a second amended complaint in lieu of
an objection to the motion to dismiss. The court granted that
motion, directed Perfetto to file his SAC by April 22, 2022, see
Mar. 23, 2022 Order, and denied the defendants’ motion to renew
6 as likely to be mooted by the SAC, see Mar. 23, 2022 Order. The
court subsequently extended Perfetto’s deadline to file his SAC
until June 21, 2022. See May 26, 2022 Order. Perfetto also filed
a motion (doc. no. 73) seeking the court’s permission to
voluntarily dismiss claim 3(a), which the court granted. See
doc. no. 76 (approving May 26, 2022 R&R).
On June 28, 2022, Perfetto filed his SAC (doc. no. 77)
asserting only the claim which the court had previously
identified as claim 3(b), as follows:
Defendants violated Mr. Perfetto’s First and Sixth Amendment rights to meaningfully access the courts and to petition the government for a redress of his grievances, in that . . . one or more of the following NHSP officials: Lt. Jim Brown, Sgt. Bettens, Sgt. Murry, Cpl. Williams, Cpl. Stacie Lamontagne, Cpl. John/Jane Doe, and Mailroom Officer McLoud delayed delivering to Mr. Perfetto his copy of the MCSC’s August 30, 2016 notice of dismissal in Perfetto v. Cascio, No. 217-2015-CV-397 (N.H. Super. Ct., Merrimack Cty.) for twelve days, causing Mr. Perfetto to receive that notice too late to allow him to file a timely motion to reconsider the dismissal of his case, resulting in the denial of Mr. Perfetto’s October 14, 2016 motion to reconsider, at least in part because the motion was untimely filed.
Apr. 27, 2020 R&R (doc. no. 17 at 5), approved by Mar. 9, 2021
Order (doc. no. 48).3
3 Perfetto has not identified any specific act taken by any particular defendant which caused the injuries alleged in this action, stating that he would need discovery to determine those facts. Because the court can decide this motion without that information, the court assumes without deciding that Perfetto could show that one or more of the defendants acted or failed to
7 The defendants have now filed a motion (doc. no. 75)
seeking to renew their original motion to dismiss (doc. no. 26)
the FAC as well as a supplemental motion to dismiss (doc. no.
78) the SAC, asserting that Perfetto has failed to state a claim
upon which relief might be granted under Federal Rule of Civil
Procedure 12(b)(6). Other than the SAC, which was filed in
response to the defendants’ first motion to dismiss, Perfetto
did not file an objection to the defendants’ motions.
Discussion
I. Rule 12(b)(6) Standard
To survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim, a plaintiff must make factual allegations
sufficient to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible if it pleads “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
In testing a complaint’s sufficiency, the court employs a
two-step approach. See Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 12 (1st Cir. 2011). First, the court screens the
act in a manner that delayed the delivery of the August 30, 2016 MCSC order to him as alleged. 8 complaint for statements that “merely offer legal conclusions
couched as fact or threadbare recitals of the elements of a
cause of action.” Id. Second, the court credits as true all non-
conclusory factual allegations and the reasonable inferences
drawn from those allegations, and then determines if those
allegations and inferences support a claim upon which relief
might be granted. Id. Courts may augment those 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,
657 F.3d 39, 46 (1st Cir. 2011).
That standard “simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence” of
illegal conduct. Twombly, 550 U.S. at 556. The “make-or-break
standard” is that those allegations and inferences, “taken as
true, must state a plausible, not a merely conceivable, case for
relief.” Sepúlveda-Villarini v. Deep’s of Educ. of P.R., 628
F.3d 25, 29 (1st Cir. 2010).
II. Motion to Dismiss
The defendants, in their supplemental motion to dismiss,
impliedly seek to incorporate their original motion to dismiss
by reference. Because the original motion to dismiss sought
dismissal of both claim 3(a) and 3(b), and claim 3(a) was later
9 voluntarily dismissed, the court construes the supplemental
motion to dismiss to incorporate the defendants’ original motion
to dismiss to the extent the original motion to dismiss sought
dismissal of claim 3(b).
After being given an extended period of time to file an
objection to the defendants’ original motion to dismiss, and the
defendants’ first motion to renew the original motion to
dismiss, Perfetto declined to object to the defendants’ request
to renew their original motion to dismiss. Instead, Perfetto
advised the court that he preferred to file a second amended
complaint, rather than an objection, to address the defendants’
arguments in the original motion to dismiss. See doc. no. 60.4
As Perfetto was provided with ample opportunity to respond to
all of the arguments in the original motion to dismiss, it does
not appear that he would suffer any unfair prejudice by this
court’s incorporation of the arguments set forth in the
4 In his motion for leave to file a second amended complaint, Perfetto states:
The defendants filed a motion to dismiss [(doc. no. 26)] on June 19, 2020 and renewed it last month when the Court denied without prejudice the plaintiff’s motion for Court-Appointed counsel. The plaintiff filed a motion to continue response to the defendant’s last month and after review, he seeks the opportunity to amend his complaint to be able to effectively object to their motion [to dismiss].
Doc. no. 60 at 2 (some punctuation omitted). 10 defendants’ original motion to dismiss, concerning Claim 3(b),
in its consideration of the supplemental motion to dismiss.
In the supplemental motion to dismiss, and the original
motion to dismiss to the extent it is incorporated therein, the
defendants argue that Perfetto has failed to state a Sixth
Amendment claim alleging that he was denied access to the courts
because he has failed to identify any actual injury caused by
the alleged delayed delivery of the August 30, 2016 MCSC order
that he suffered to any nonfrivolous claim that he was legally
entitled to pursue. The defendants also argue that Perfetto’s
October 14, 2016 motion to reconsider was denied both because it
was untimely and because it failed to state grounds for relief,
and that Perfetto therefore cannot show, that a timely motion to
reconsider the August 30, 2016 dismissal of Cascio would have
been successful. The defendants further argue that the August
30, 2016 order dismissing Cascio for failure to effect service
under N.H. Super. Ct. R. 4(c) was entered without prejudice, and
that Perfetto was therefore able to refile a new action based on
the Cascio claims. Perfetto disagrees that his case was
dismissed without prejudice, pointing to the fact that the MCSC
denied his motions to reopen in Cascio. He asserts that,
therefore, he was prejudiced by the dismissal of that case, as
the dismissal cost him the ability to litigate the claims he had
asserted therein.
11 III. Right of Access to the Courts and Right to Petition the Government for a Redress of Grievances
A. Legal Standards
The First Amendment protects a prisoner’s right “to
petition the Government for a redress of grievances,” U.S.
Const. amend. I, and “[t]he right of access to the courts is an
established aspect of this right.” Fabiano v Hopkins, 352 F.3d
446, 453 (1st Cir. 2003); see also Bounds v. Smith, 430 U.S.
817, 821 (1977) (It is well “established . . . that prisoners
have a constitutional right of access to the courts.”). In
addition, denial of access to the courts for a pro se litigant
may implicate the Sixth and Fourteenth Amendments. See Lewis v.
Casey, 518 U.S. 343, 346 (1996).
However, “[t]he right of access to the courts, in the
context of prisoners, is addressed only to a prisoner’s right to
attack his conviction and his right to challenge the conditions
of his confinement.” Riva v. Brasseur, No. 15-2554, 2016 WL
9650983, at *1, 2016 U.S. App. LEXIS 23932, at *3 (1st Cir.
Sept. 12, 2016); see also Lewis, 518 U.S. at 355. Further, “an
inmate alleging a violation of Bounds must show actual injury,”
Lewis, 518 U.S. at 349, which occurs when an inmate’s
“nonfrivolous legal claim [has] been frustrated or [] impeded,”
id. at 353.
12 B. Nonfrivolous Claims Perfetto Was Entitled to Pursue
In his SAC, Perfetto sets forth a summary of eight
conditions-of-confinement claims he asserted in Cascio, alleging
that the defendants in that case violated his federal
constitutional rights by denying him access to the courts,
denying him magazines he had ordered, and overcharging him for
photocopies. Perfetto has a right to file a lawsuit challenging
such conditions of confinement. See Riva, 2016 WL 9650983, at
*1, 2016 U.S. App. LEXIS 23932, at *3. And, for the purposes of
resolving the instant motion to dismiss, the court assumes
without deciding that Perfetto’s claims in Cascio were
nonfrivolous.
C. Injury to Claims in Cascio
Perfetto alleges that the claims he asserted in Cascio were
lost when, after the MCSC dismissed that case on August 30,
2016, one or more of the defendants delivered that order to him
twelve days late, preventing him from filing a timely motion to
reconsider the dismissal, thus causing him to lose the ability
to litigate the claims asserted in that case.
13 1. August 30, 2016 Order
The August 30, 2016 MCSC order dismissed Cascio pursuant to
N.H. Super. Ct. R. 4(c), because Perfetto failed to effect
service on the defendants in that case. The defendants here
assert that, under those circumstances, Cascio was dismissed
without prejudice. Perfetto disagrees. The order itself is
silent as to whether the MCSC intended to dismiss Cascio with or
without prejudice. See Cascio, Aug. 30, 2016 Order (doc. no. 26-
10).
Under New Hampshire law, “[a] judgment entered ‘with
prejudice’ constitutes a judgment on the merits of a matter,
even if it resulted from a violation of a procedural rule and
bars any attempt to revive the previous action.” Riverbend Condo
Assoc. v. Groundhog Landscaping & Prop. Maint., Inc., 173 N.H.
372, 375, 239 A.3d 989, 992 (2020). Accordingly, if the MCSC
dismissed Cascio with prejudice, res judicata would bar Perfetto
from filing the same claims against the same defendants in a
later action. If, however, the MCSC dismissed Cascio without
prejudice, that dismissal would not be “a final judgment on the
merits,” and thus would not prevent Perfetto from refiling his
claims. Graham v. Eurosim Constr., No. 2021-0213, 2023 N.H.
LEXIS 21, at *2, 2023 WL 2439630, at *1 (N.H. Mar. 10, 2023). In
Graham, the NHSC held that “a dismissal order resulting from a
plaintiff’s violation of a court order or a procedural rule that
14 is silent as to prejudice will be deemed to be without prejudice
and, therefore, not ‘on the merits’ for the purposes of res
judicata in both the superior and circuit courts,” finding that
such a rule is “in the interests of justice.” Id., 2023 N.H.
LEXIS 21, at *12, 2023 WL 2439630, at *4.
Prior to the NHSC’s ruling in Graham, however, and at the
time of the August 30, 2016 MCSC order, New Hampshire did not
have a definitive rule as to whether an order of dismissal that
is based on procedural grounds and is silent with regard to
prejudice should be deemed to have been entered with or without
prejudice. Id., 2023 N.H. LEXIS 21, at *11-*12, 2023 WL 2439630,
at *4. The NHSC has generally disfavored, however, dismissing a
suit with prejudice where the plaintiff violated a procedural
rule as counter to “the fundamental principle that, in New
Hampshire, a party should not lose a case on a ‘procedural
technicality.’” Id., 2023 N.H. LEXIS 21, at *11, 2023 WL
2439630, at *4 (quoting In re Proposed Rules of Civ. Proc., 139
N.H. 512, 515, 659 A.2d 420 (1995)); see also Graham, 2023 N.H.
LEXIS 21, at *13, 2023 WL 2439630, at *4 (“This rule is
consonant with a fundamental principle underlying our court
system: procedural technicalities should not thwart the
administration of justice.” (citation omitted)).
The MCSC’s order dismissing Cascio for Perfetto’s violation
of Superior Court Rule 4(c), a procedural rule, was silent as to
15 whether the dismissal was with or without prejudice. In light of
the long-standing rule in New Hampshire disfavoring dismissals
“with prejudice” in such circumstances, Perfetto has not stated
a claim upon which relief can be granted. He has not alleged any
facts that would suggest that his circumstances were unique such
that a dismissal with prejudice can be reasonably inferred.
Accordingly, absent allegations that could plausibly suggest
that the dismissal was intended to be with prejudice, Perfetto
has not pleaded facts that could give rise to a plausible
inference that he suffered an actual injury with respect to his
claims in Cascio.
Moreover, as mentioned above, the MCSC found that
Perfetto’s October 2016 motion to reconsider was not only
untimely but also failed to assert any basis for relief.
Perfetto has not alleged that the contents of his motion to
reconsider would have been different had he received the August
30, 2016 order earlier. Perfetto, therefore, has failed to plead
facts which demonstrate the existence of an injury caused by the
defendants, rather than by the substantive shortcomings of his
motion to reconsider. Because Perfetto has not stated facts to
demonstrate that any act or omission of any defendant in this
case denied him the ability to access the courts and to petition
the government for a redress of grievances in Cascio, he has
failed to state a claim upon which relief might be granted based
16 on the alleged late delivery of the August 30, 2016 MCSC order.
Accordingly, the court grants the supplemental motion to dismiss
this action.
2. July 6, 2016 Order
In their supplemental motion to dismiss, the defendants
argue that, to the extent Perfetto is seeking to assert a new
claim in this case based on his assertion that he never received
the July 6, 2016 MCSC order, the court should not allow that
claim to proceed because it is untimely and Perfetto has failed
to account adequately for the untimeliness of that claim. Also,
the defendants argue that Perfetto’s allegation that he did not
receive the July 6, 2016 MCSC order fails to state a claim for a
denial of access to the courts.
In the SAC, Perfetto states that he never received the
MCSC’s July 6, 2016 order granting him permission to serve the
Cascio defendants by certified mail. Perfetto asserts that, had
he received that order, he would have asked the MCSC for an
extension of time to effect service s that he could amass the
funds necessary to pay for certified letters to each defendant.
Perfetto opines that the MCSC would likely have granted him an
extension, as it had granted his motions for extensions in the
past. Had that scenario come to pass, Perfetto argues, this
17 action would not have been filed, because Cascio would not have
been dismissed for failure to effect service.
Even accepting as true Perfetto’s assertion that he did not
receive the July 6, 2016 MCSC order, the court finds that, to
the extent Perfetto asserts that he was unable to litigate the
claims in Cascio, at least in part due to not receiving the July
6, 2016 MCSC order, he does not suggest that any act or omission
of any NHSP staff member caused that injury. Therefore, to the
extent that Perfetto seeks to add a claim to this action based
on the fact that he did not receive the July 6, 2016 Order in
his SAC, that request is denied.
Conclusion
For the foregoing reasons, the court enters the following
order:
1. The defendants’ supplemental motion to dismiss
(doc. no. 78) is deemed to have incorporated, by reference,
the defendants’ original motion to dismiss (doc. no. 26) to
the extent that the original motion sought dismissal of
Claim 3(b).
2. So construed, the defendants’ supplemental motion
to dismiss (doc. no. 78) is granted.
3. The defendants’ motion to renew their original
motion to dismiss (doc. no. 26) is denied as moot.
18 4. This case is dismissed. The clerk’s office is
directed to enter judgment and close the case.
SO ORDERED.
_________________________ Samantha D. Elliott United States District Judge
March 30, 2023
cc: Jonathan Andrew Perfetto, pro se Lawrence Gagnon, Esq.