Rowe v . Hillsborough County HOC CV-98-449-SD 11/09/98 X UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
David B . Rowe
v. Civil N o . 98-449-SD
Hillsborough County House of Corrections, et a l .
REPORT AND RECOMMENDATION
Pro se plaintiff David B . Rowe is a prisoner incarcerated at
the Hillsborough County House of Corrections (“Hillsborough
HOC”). He brought this civil rights action in forma pauperis,
claiming that several of his constitutional rights were violated
when his personal property was confiscated as punishment for his
request for medication. His complaint is before me for
preliminary review, to determine whether this action may proceed.
See United States District Court for the District of New
Hampshire Local Rule (“LR”) 4.3(d)(2); see also 28 U.S.C. § 1915A (a). As explained more fully below, I recommend that this action
be dismissed for failing to state claims upon which relief may be
granted. See LR 4.3(d)(2)(A)(i); 28 U.S.C. § 1915A(b)(1).
Discussion
Generously construing the complaint in plaintiff’s favor and
accepting all the allegations asserted therein as true, see Ayala
Serrano v . Lebron Gonzalez, 909 F.2d 8 , 15 (1st Cir. 1990)
(following Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976) to construe pro se pleadings liberally in favor of that party); Aulson v . Blanchard, 83 F.3d 1 , 3 (1st Cir. 1996) (stating the “failure to state a claim” standard of review), plaintiff tells the following story in support of his claims. On June 2 7 , 1998, he asked to be released from his cell to receive some medication, which the guard refused to allow him to do. Plaintiff challenged the guard’s contention that inmates had to sign-up prior in order to be released from their cells for medical purposes. In response to plaintiff’s challenge that such sign-ups are not standard procedure, plaintiff was placed in “lock down” in his cell, and then later that day removed to 24 hour punitive segregation. During the transfer, his laundry, bible, and legal papers were taken out of his cell and put in the “property office.” Both actions were taken without first giving plaintiff an administrative hearing. Despite several requests for his personal property, plaintiff did not receive it until July 7 , 1998.
This loss of property allegedly caused plaintiff a great deal of personal stress. He requested medical attention for that anxiety on July 3 , but no one came. On July 6 he was asked whether he was suicidal, but plaintiff said he was not. In this complaint, however, plaintiff contends that the eleven day loss of his personal property caused him emotional stress, mental
2 anguish, depression, anxiety, and great humiliation (because he
did not have clean laundry during that period).
Based on these facts, plaintiff claims his rights under the
First, Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth
Amendments have been violated. The gravamen of his complaint,
however, is that this loss of property: (1) denied him of his
right to access the courts; (2) constituted cruel and unusual
punishment, and (3) was done without due process of law.
Plaintiff also asserts that he was mistreated because he is
black, in violation of the equal protection clause. None of the
alleged deprivations, however, rises to the level of a
constitutional violation to support his claims for relief under
42 U.S.C. § 1983, § 1985 or § 1988.
(1) Right to Access the Courts.
Plaintiff contends that the eleven day loss of his legal
papers prevented him from “communicating with the court,” but not
that any adverse court action occurred as a result. Although
plaintiff enjoys a fundamental right to access the courts
protected by the First and Fourteenth Amendment, see Bounds v .
Smith, 430 U.S. 8 1 7 , 821 (1977); Carter v . Fair, 786 F.2d 433,
435 (1st Cir. 1986), that right is not violated unless and until
the denied access to the courts hindered his efforts to purse a
legal claim. See Lewis v . Casey, 518 U.S. 343, 3 5 1 , 355 (1996).
3 “The tools [Bounds] requires to be provided are those that the
inmates need in order to attack their sentences, directly or
collaterally, and in order to challenge the conditions of their
confinement.” Id. An alleged inability to “communicate” with
the court for eleven days does not show, or even suggest, that
plaintiff was actually injured, by way of a lost motion, missed
filing deadline, or some other adverse consequence, in any court
proceeding plaintiff may have had pending. Moreover, when, as
here, the restricted access to his legal materials was reasonably
related to a legitimate disciplinary goal, there is no cognizable
constitutional deprivation. See id. at 361-62 (citing Turner v .
Safley, 482 U.S. 7 8 , 89 (1987) to explain why deference to local
authorities regarding prison administration is appropriate).
Accordingly, I find that plaintiff has not stated a viable denial
of access to the courts claim. See id.
(2) Right to be free from Cruel and Unusual Punishment.
Plaintiff’s contentions under the Eighth Amendment focus
both on the alleged denial of medication and on the mental
anguish he endured while deprived of his laundry. Neither
contention demonstrates the requisite “sufficiently serious”
misconduct inflicted by a prison official with “deliberate
indifference” to plaintiff’s needs to rise to the level of “cruel
and unusual punishment” protected by the Eighth Amendment. See
4 Wilson v . Seiter, 501 U.S. 2 9 4 , 2 9 8 , 303 (1991) (holding that an
Eighth Amendment claim has both an objective and a subjective
component).
Plaintiff’s claims of denied medical care fail to show any
reckless, callous, or deliberate indifference to his mental or
physical health. Based on the allegations in the complaint, he
was denied just one dosage of medication, with apparently n o , or
only a depreciable, effect on him. Similarly, though he asked
for a psychiatrist, the nurse told him one would not be available
for three days. On that day, plaintiff was asked whether he was
suicidal, and he responded that he was not. No psychiatrist
visited plaintiff. Failing to provide psychiatric services for
an inmate who is simply “stressed out” because he does not have
clean laundry does not approach the level of knowing, deliberate
indifference to his serious medical needs required for an Eighth
Amendment violation. See Watson v . Canton, 984 F.2d 5 3 7 , 540
(1st Cir. 1993) (holding that deliberate indifference to serious
medical needs requires wantonness or recklessness in the criminal
law sense, not merely failure to provide adequate medical care);
see also DesRosiers v . Moran, 949 F.2d 1
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Rowe v . Hillsborough County HOC CV-98-449-SD 11/09/98 X UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
David B . Rowe
v. Civil N o . 98-449-SD
Hillsborough County House of Corrections, et a l .
REPORT AND RECOMMENDATION
Pro se plaintiff David B . Rowe is a prisoner incarcerated at
the Hillsborough County House of Corrections (“Hillsborough
HOC”). He brought this civil rights action in forma pauperis,
claiming that several of his constitutional rights were violated
when his personal property was confiscated as punishment for his
request for medication. His complaint is before me for
preliminary review, to determine whether this action may proceed.
See United States District Court for the District of New
Hampshire Local Rule (“LR”) 4.3(d)(2); see also 28 U.S.C. § 1915A (a). As explained more fully below, I recommend that this action
be dismissed for failing to state claims upon which relief may be
granted. See LR 4.3(d)(2)(A)(i); 28 U.S.C. § 1915A(b)(1).
Discussion
Generously construing the complaint in plaintiff’s favor and
accepting all the allegations asserted therein as true, see Ayala
Serrano v . Lebron Gonzalez, 909 F.2d 8 , 15 (1st Cir. 1990)
(following Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976) to construe pro se pleadings liberally in favor of that party); Aulson v . Blanchard, 83 F.3d 1 , 3 (1st Cir. 1996) (stating the “failure to state a claim” standard of review), plaintiff tells the following story in support of his claims. On June 2 7 , 1998, he asked to be released from his cell to receive some medication, which the guard refused to allow him to do. Plaintiff challenged the guard’s contention that inmates had to sign-up prior in order to be released from their cells for medical purposes. In response to plaintiff’s challenge that such sign-ups are not standard procedure, plaintiff was placed in “lock down” in his cell, and then later that day removed to 24 hour punitive segregation. During the transfer, his laundry, bible, and legal papers were taken out of his cell and put in the “property office.” Both actions were taken without first giving plaintiff an administrative hearing. Despite several requests for his personal property, plaintiff did not receive it until July 7 , 1998.
This loss of property allegedly caused plaintiff a great deal of personal stress. He requested medical attention for that anxiety on July 3 , but no one came. On July 6 he was asked whether he was suicidal, but plaintiff said he was not. In this complaint, however, plaintiff contends that the eleven day loss of his personal property caused him emotional stress, mental
2 anguish, depression, anxiety, and great humiliation (because he
did not have clean laundry during that period).
Based on these facts, plaintiff claims his rights under the
First, Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth
Amendments have been violated. The gravamen of his complaint,
however, is that this loss of property: (1) denied him of his
right to access the courts; (2) constituted cruel and unusual
punishment, and (3) was done without due process of law.
Plaintiff also asserts that he was mistreated because he is
black, in violation of the equal protection clause. None of the
alleged deprivations, however, rises to the level of a
constitutional violation to support his claims for relief under
42 U.S.C. § 1983, § 1985 or § 1988.
(1) Right to Access the Courts.
Plaintiff contends that the eleven day loss of his legal
papers prevented him from “communicating with the court,” but not
that any adverse court action occurred as a result. Although
plaintiff enjoys a fundamental right to access the courts
protected by the First and Fourteenth Amendment, see Bounds v .
Smith, 430 U.S. 8 1 7 , 821 (1977); Carter v . Fair, 786 F.2d 433,
435 (1st Cir. 1986), that right is not violated unless and until
the denied access to the courts hindered his efforts to purse a
legal claim. See Lewis v . Casey, 518 U.S. 343, 3 5 1 , 355 (1996).
3 “The tools [Bounds] requires to be provided are those that the
inmates need in order to attack their sentences, directly or
collaterally, and in order to challenge the conditions of their
confinement.” Id. An alleged inability to “communicate” with
the court for eleven days does not show, or even suggest, that
plaintiff was actually injured, by way of a lost motion, missed
filing deadline, or some other adverse consequence, in any court
proceeding plaintiff may have had pending. Moreover, when, as
here, the restricted access to his legal materials was reasonably
related to a legitimate disciplinary goal, there is no cognizable
constitutional deprivation. See id. at 361-62 (citing Turner v .
Safley, 482 U.S. 7 8 , 89 (1987) to explain why deference to local
authorities regarding prison administration is appropriate).
Accordingly, I find that plaintiff has not stated a viable denial
of access to the courts claim. See id.
(2) Right to be free from Cruel and Unusual Punishment.
Plaintiff’s contentions under the Eighth Amendment focus
both on the alleged denial of medication and on the mental
anguish he endured while deprived of his laundry. Neither
contention demonstrates the requisite “sufficiently serious”
misconduct inflicted by a prison official with “deliberate
indifference” to plaintiff’s needs to rise to the level of “cruel
and unusual punishment” protected by the Eighth Amendment. See
4 Wilson v . Seiter, 501 U.S. 2 9 4 , 2 9 8 , 303 (1991) (holding that an
Eighth Amendment claim has both an objective and a subjective
component).
Plaintiff’s claims of denied medical care fail to show any
reckless, callous, or deliberate indifference to his mental or
physical health. Based on the allegations in the complaint, he
was denied just one dosage of medication, with apparently n o , or
only a depreciable, effect on him. Similarly, though he asked
for a psychiatrist, the nurse told him one would not be available
for three days. On that day, plaintiff was asked whether he was
suicidal, and he responded that he was not. No psychiatrist
visited plaintiff. Failing to provide psychiatric services for
an inmate who is simply “stressed out” because he does not have
clean laundry does not approach the level of knowing, deliberate
indifference to his serious medical needs required for an Eighth
Amendment violation. See Watson v . Canton, 984 F.2d 5 3 7 , 540
(1st Cir. 1993) (holding that deliberate indifference to serious
medical needs requires wantonness or recklessness in the criminal
law sense, not merely failure to provide adequate medical care);
see also DesRosiers v . Moran, 949 F.2d 1 5 , 18-19 (1st Cir. 1991)
(applying Wilson’s objective/subjective test to a claimed denial
of medical care).
Similarly, plaintiff’s assertion that the missing laundry
5 constituted “cruel and unusual punishment” falls short of the
mark. While being deprived of clean laundry understandably could
have been very upsetting to plaintiff, and may in fact caused him
sincere anxiety, stress and humiliation, it does not approach the
requisite “‘unnecessary and wanton infliction of pain,’” nor does
it appear to defy “contemporary standard[s] of decency” such that
“the minimal civilized measure of life’s necessities” were denied
him, to invoke the protections of the Eighth Amendment. Rhodes
v . Chapman, 452 U.S. 3 3 7 , 346 (1981) (quotation omitted). Eleven
days without clean laundry may not be comfortable, but it simply
is not inhumane. See Farmer v . Brennan, 511 U.S. 825, 832 (1994)
(citing Rhodes, 452 U.S. at 349)); see also Lewis, 518 U.S. at
361-62 (explaining how the Constitution does not require court to
become embroiled in the details of prison administration).
I conclude, therefore, that the complaint fails to state a
claim for an Eighth Amendment violation and recommend that
plaintiff’s § 1983 and § 1985 claims based thereon be dismissed.
(3) Right to Due Process of Law.
While not explicitly articulate, generously reading the
facts in plaintiff’s favor, the complaint may be construed as
raising due process claims based on his move to punitive
segregation prior to receiving a hearing and on his loss of
property. Both contentions, however, fail to state a due process
6 claim actionable under § 1983 or § 1985.
Disciplinary transfers need not be accompanied by notice or
a hearing, even if done in violation of prison regulations. See
Sandin v . Conner, __ U.S. __, 115 S . C t . 2293, 2300 (1995)
(holding that the due process clause is not implicated unless the
challenged transfer “imposes [an] atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life”). Here, plaintiff does not even allege that prison
regulations required that he receive a hearing prior to his “lock
down.” Nor does he allege that the disciplinary segregation
adversely affected the length of his confinement. See id.
Quite simply, within the prison environment, there is nothing
“atypical and significant” about being in “lock down” for 24
hours. See e.g. Stokes v . Fair, 795 F.2d 235, 236 (1st Cir.
1986) (finding no constitutional liberty interest in being free
from administrative segregation or from other transfers within
the prison, for any reason or no reason at a l l ) . This claim,
therefore, does not rise to the level of a constitutionally
protected liberty interest.
Plaintiff’s loss of property claim fails, both because the
property was returned to him after only eleven days, and because
New Hampshire law provides remedies to him to recover any damages
sustained. See Zinermon v . Burch, 494 U.S. 113, 125-16 (1990)
7 (holding that the constitutional deprivation actionable under §
1983 is not complete unless and until the state fails to provide
due process); Lowe v . Scott, 959 F.2d 323, 340 (1st Cir. 1992)
(holding that adequate state remedies preclude a § 1983 action to
redress lost property); see also N.H. Rev. Stat. Ann. 28:16
(1988) (providing a statutory right to pursue claims against
county officials).
As plaintiff has not averred facts to support either a
liberty or a property deprivation without due process of law, I
find that his alleged due process deprivations fail to state a
claim upon which relief may be granted and recommend that they be
dismissed.
(4) Right to Equal Protection.
Although plaintiff asserts that he was mistreated because he
is black, which is a suspect class protected by the equal
protection clause of the Fourteenth Amendment, see Yerardi’s
Moody S t . Restaurant & Lounge v . Bd. of Selectmen, 932 F.2d 8 9 ,
94 (1st Cir. 1991) (explaining how the equal protection clause
protects suspect classes from inequitable governmental
treatment), he has failed to allege sufficient facts to support a
claim upon which relief may be granted for a violation of his
equal protection rights. Plaintiff fails to state a single fact
which substantiates his bald allegation that he was placed in
8 lock-down and deprived of his personal property because he is
black. Bald allegations are insufficient, without more, to state
a viable civil rights claim. See Roth v . United States, 952 F.2d
611, 613 (1st Cir. 1991) (requiring plaintiff to present either
direct or inferential factual allegations regarding “each
material element necessary to sustain recovery” (quotation
omitted)); see also Dewey v . University of N.H., 694 F.2d 1 , 3
(1st Cir. 1982), cert. denied, 461 U.S. 944 (1983) (requiring
plaintiff allege the minimal facts necessary to substantiate a
civil rights claim); Brown v . Zavaras, 63 F.3d 9 6 7 , 972 (10th
Cir. 1995) (“[E]ven pro se litigants must do more than make mere
conclusory statements regarding constitutional claims.”
(citations omitted)). Based on my review of the complaint, which
fails to document a single incident of racial animus towards
plaintiff, I conclude that plaintiff’s racial discrimination
claim is merely conclusory and fails to state an equal protection
violation.
(5) The Other Constitutional Rights.
Finally, plaintiff also states, without alleging any facts
in support of the assertions, that his Fourth, Fifth, Sixth and
Thirteen Amendment rights were violated by the lock down and lost
personal property. Although plaintiff asserts that his property
was unlawfully taken, “the Fourth Amendment proscription against
9 unreasonable searches does not apply within the confines of the
prison cell.” Hudson v . Palmer, 468 U.S. 5 1 7 , 526 (1984). The
complaint, therefore, does not give rise to a Fourth Amendment
claim. See id. at 527-28 (requiring that an inmate’s expectation
of privacy yield to institutional security concerns). Nothing
alleged, or reasonably inferred from the allegations made,
supports a claim for a Fifth, Sixth or Thirteenth Amendment
violation. Accordingly, I recommend that plaintiff’s alleged
deprivations of his Fourth, Fifth, Sixth and Thirteenth Amendment
rights be dismissed for failing to state a claim upon which
relief may be granted.
Conclusion
For the reasons explained above, I recommend that
plaintiff’s complaint (document n o . 1 ) be dismissed for failing
to state a claim upon which relief may be granted. See 28 U.S.C.
§ 1915A(b)(1); see also LR 4.3(d)(2)(A)(i). A dismissal based on
this Report and Recommendation will count as a “strike” against
plaintiff, pursuant to 28 U.S.C. § 1915(g).
Any objections to this report and recommendation must be
filed within ten days of receipt of this notice. Failure to file
an objection within the specified time waives the right to appeal
the district court’s order. See Unauthorized Practice of Law
10 Committee 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: November 9, 1998
cc: David B . Rowe, pro se