Legere v. NHDOC

2014 DNH 111

• Court: District Court, D. New Hampshire
• Decided: May 20, 2014
• Docket: 14-cv-111-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher L. Legere

v. Civil No. 14-cv-111-LM Opinion No. 2014 DNH 111 New Hampshire Department of Corrections, Commissioner William Wren, et al.

O R D E R

Before the court is prisoner Christopher L. Legere’s

complaint. Legere asserts a due process challenge to being

identified in state prison records as a gang member. Legere

also asserts First Amendment claims challenging the prison’s

rejection of Christmas cards sent to him by the Outlaws

Motorcycle Club (“Outlaws”), a group of which he has been a

member, on the basis that the group is not a prison gang, and

equal protection claims on the grounds that other inmates are

allowed to receive Christmas cards from their friends and loved

ones. The matter is before this court for preliminary review

under 28 U.S.C. § 1915A.

Standard

In determining whether a pro se pleading states a claim,

the court construes the pleading liberally. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal conclusions, the court considers whether the factual content in

the pleading and inferences reasonably drawn therefrom, taken as

true, state a facially plausible claim to relief. Hernandez-

Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Discussion

I. Due Process Claim

Legere asserts that prison officials deprived him of due

process by identifying him as a gang member in the absence of

specific written policies, and by failing to remove that finding

from his records after he filed grievances concerning that

issue. Liberty interests protected by Due Process Clause in

prison settings “will be generally limited to freedom from

restraint which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the Due

Process Clause of its own force, nonetheless imposes atypical

and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Sandin v. Conner, 515 U.S.

472, 484 (1995) (citations omitted).

Legere asserts, as grounds for finding an atypical impact,

that the gang member label renders him ineligible for early

release under a bill currently pending in the state legislature,

see N.H. H.B. 649 (“[t]he earned time reductions . . . shall

2 only be earned and available to prisoners while in the least

restrictive security classifications,” and “may be forfeited for

involvement or membership in a security threat group”), and

would also render him unlikely to receive other modifications or

discretionary suspensions of his sentence in the future.

Legere’s assertions, however, are entirely speculative, and do

not provide any basis for this court to find a due process

violation. Legere -- presently serving a sentence for second

degree murder in an enhanced classification status (with a

minimum release date in 2051) -- has not shown that the gang

member label in his records presently deprives him of any

protected liberty interest, or will certainly deprive him of any

such interest in the future. Cf., e.g., Reid v. Stanley, No.

04-CV-369-JD, 2006 WL 1875335, at *4 (D.N.H. July 6, 2006) (“New

Hampshire has not created a liberty interest in the opportunity

for parole.”).

Legere further contends that prison officials violated his

right to due process by finding him to be a gang member in the

absence of any relevant prison policy or guidance concerning

gang affiliation. Legere does not have a protected interest,

however, in having particular standards in place governing

prison officials’ determination as to his gang membership.

3 Furthermore, Legere cannot base a due process claim on his

failure to obtain a desired outcome from a grievance. See

Leavitt v. Allen, 46 F.3d 1114, 1995 WL 44530, at *2 (1st Cir.

1995) (unpublished table decision) (“prison regulations which

establish a grievance procedure cannot give rise to a liberty

interest because they confer only procedural protections, not

substantive rights, upon the inmates who may use the grievance

procedures”). Legere has thus not stated any plausible due

process claim under § 1983.

II. Rejected Mail

A. First Amendment

Legere has alleged that prison officials violated his First

Amendment rights by rejecting cards sent to him by the Outlaws

Motorcycle Club.1 Legere has failed to allege any facts,

however, undermining the prison’s stated security rationale for

1 A greeting card depicting a skull and cross-pistons sent to Legere from his “1% Brothers in Eau Claire,” is attached to the complaint as an example of the rejected mail. Legere suggests that prison officials may have been influenced by unsub- stantiated reports on the Outlaws. But see United States v. Deitz, 577 F.3d 672, 676 (6th Cir. 2009) (“the Outlaws have a history of secrecy and violence, and are also well-known for retaliating against witnesses and informants” (citing U.S. Department of Justice reports)); United States v. Starrett, 55 F.3d 1525, 1533 (11th Cir. 1995) (“Witnesses testified that the term “one-percenter”—usually depicted by the symbol “1% er”—is motorcycle gang parlance meaning that the club is comprised of the one percent of the overall biker population who maintain total independence from society, and who are known to cause the most trouble, or “‘raise the most hell.’”). 4 rejecting the mail, and there are no allegations suggesting that

the rejection of the mail was an exaggerated response to that

legitimate penological concern. See generally Turner v. Safley,

482 U.S. 78, 87 (1987); see also Beard v. Banks, 548 U.S. 521,

528 (2006). Prison officials’ failure to reject all such

letters addressed to Legere over time, does not, without more,

demonstrate that the rejection of the cards at issue was an

exaggerated response to such concerns. Accordingly, Legere has

failed to state a plausible First Amendment claim under 42

U.S.C. § 1983, relating to the rejection of that mail.

B. Equal Protection

Legere contends that prison officials violated his right to

equal protection by allowing other inmates to receive Christmas

cards from loved ones, while rejecting cards sent to him from

the Outlaws. There is a rational basis, however, for

distinguishing between the cards from the Outlaws, and other

mail. Legere has not alleged any facts suggesting that there is

any policy or practice of denying him such cards while allowing

other similar gang-related correspondence to other inmates.

Stripped of legal conclusions, Legere’s complaint fails to state

any plausible equal protection claim. See Ashcroft, 556 U.S. at

678.

5 Conclusion

For the foregoing reasons, this court will dismiss this

complaint, with prejudice, unless Legere, within thirty days of

the date of this order, files an amended complaint stating a

plausible federal claim.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

May 20, 2014

cc: Christopher L. Legere, pro se LBM:nmd