Starr v . Coulombe, et a l . 06-CV-487-SM 01/29/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Darren Starr, Plaintiff
v. Civil N o . 06-cv-487-SM Opinion N o . 2009 DNH 004 Timothy Coulombe, et a l . , Defendants
O R D E R
Plaintiff, Darren Starr, is an inmate at the Northern New
Hampshire Correction Facility (“NCF”) and, although acting pro
s e , he is an experienced litigant in this court.1
1 In 1987, Starr was convicted in state court of second- degree murder and sentenced to a term of twenty-eight years to life imprisonment. Since then, he has been one of this court’s more frequent litigants, filing numerous civil actions challenging a wide array of the conditions of his confinement. Among other things, Starr has claimed that prison officials wrongfully deprived him of a marriage licence by refusing to drive him to the local town clerk’s office, thereby preventing him from marrying his girlfriend (Civ. n o . 04-cv-02); that prison officials violated his constitutional rights when personal property was damaged during a search of his cell (Civ. n o . 05-cv- 2 6 4 ) ; that a prison mail regulation prohibiting inmates from receiving publications containing photographs of nude female models depicted in lesbian love scenes violates his First Amendment rights (Civ. n o . 97-cv-72); and, although he is not a Taoist, that his statutory and constitutional rights were violated when prison officials restricted the practice of certain aspects of Tai Chi - a form of martial arts (Civ. n o . 05-cv-368).
To be fair, none of Starr’s complaints has been dismissed as patently frivolous, and each is thoroughly researched, articulately stated, and well plead. Yet, to date, it does not appear that Starr has prevailed on any of his federal claims. Nevertheless, he remains undaunted. In his latest suit, Starr again seeks compensatory and
punitive damages, as well as declaratory and injunctive relief,
for alleged violations of his constitutionally protected rights.
Specifically, Starr claims that various employees of the New
Hampshire Department of Corrections violated his First and
Fourteenth Amendment rights when they intercepted, and
subsequently destroyed, several pages of printed statutory
materials that had been mailed to him by one of his friends.
And, he goes on to say that defendants then deprived him of
certain procedural protections when he lodged various grievances
concerning the decision not to deliver those materials to him in
the prison.
Defendants move for summary judgment as to all three claims
advanced in Starr’s complaint. Starr objects and, in turn, moves
for summary judgment as to his due process and retaliation
claims.
Standard of Review
When ruling on a party’s motion for summary judgment, the
court must “view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Griggs-Ryan v . Smith, 904
F.2d 1 1 2 , 115 (1st Cir. 1990). Summary judgment is appropriate
2 when the record reveals “no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is
‘material’ if it potentially affects the outcome of the suit and
a dispute over it is ‘genuine’ if the parties’ positions on the
issue are supported by conflicting evidence.” Int’l Ass’n of
Machinists & Aerospace Workers v . Winship Green Nursing Ctr., 103
F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
Nevertheless, if the non-moving party’s “evidence is merely
colorable, or is not significantly probative,” no genuine dispute
as to a material fact has been proved, and “summary judgment may
be granted.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-
50 (1986) (citations omitted). The key, then, to defeating a
properly supported motion for summary judgment is the non-
movant’s ability to support his or her claims concerning disputed
material facts with evidence that conflicts with that proffered
by the moving party. See generally Fed. R. Civ. P. 56(e). It
naturally follows that while a reviewing court must take into
account all properly documented facts, it may ignore bald
assertions, unsupported conclusions, and mere speculation. See
Serapion v . Martinez, 119 F.3d 9 8 2 , 987 (1st Cir. 1997).
3 Background
Based upon the record before the court, the undisputed
material facts appear to be as follows. On November 1 8 , 2003,
and again at some point in December of 2003, Starr had difficulty
accessing certain New Hampshire statutes and administrative
regulations using the prison’s computers. Specifically, Starr
sought “complete copies . . . of RSA 21-H, RSA 6 2 2 , and the
Nursing Board Rules.” Complaint, Exhibit 6-d, at para. 4 .
Frustrated by his inability to obtain those documents using the
resources available to him at the prison, Starr contacted a non-
prisoner friend and asked that she use her own computer to access
the materials in question, print out copies, and mail them to
Starr. She complied and the materials arrived at the prison, in
a single envelope, on or around December 2 3 , 2003 (the “printed
materials”).
Pursuant to prison regulations, the materials were held
until a meeting of the Literary Review Committee (the “LRC”)
could convene and determine whether or not the printed materials
could be forwarded to Starr. That committee met on February 1 9 ,
2004, and rejected the materials as being too voluminous and in
violation of the prison’s “Publisher’s Only Rule.” That same
day, Starr was informed of the committee’s decision and told,
“You have ten (10) days from the above date to appeal to the
4 Warden. If you do not appeal, the above publication will be
returned to the sender at your expense.” Complaint, Exhibit 3 ,
Notice of Rejected Material. See generally N.H. Dept. of
Corrections Policy and Procedure Directive (“PPD”) 5.26 IV D (the
“Publisher’s Only Rule,” which provides that commercially
published materials may be sent to inmates only by the publisher
and states that “items that have been re-packed or delivered by
other sources will not be accepted) and PPD 5.26 N (providing
inmates with ten days within which to appeal adverse decisions
issued by the committee).
Attached to that notification was a “5 Day Notice” from the
prison’s mail room. That document notified Starr that, because
the printed materials had been rejected by the LRC, he had
“excess/unauthorized mail/property that needs to be removed from
the N.H. State Prison.” Complaint, Exhibit 4 . See generally PPD
9.2 IV (governing inmate property and providing that
“unauthorized property must be removed within five (5) business
days of intake/reception, otherwise it will be disposed of by the
State”). In accordance with PPD 9.2, Starr was notified that he
had five business days from the date of the notice within which
to either remove the materials or file an appeal. Starr was also
informed that if he failed to do s o , the property would be
destroyed. Plainly, the notices given to Starr - one of which
5 gave him ten days to appeal the rejection of his mail, and the
other which afforded him only five business days to appeal the
proposed destruction of that material - were confusing. (The
printed materials probably did not qualify as
“excess/unauthorized property” subject to destruction until the
appeal period expired without Starr having filed an appeal o r , if
one was filed, until it was finally resolved.)
As to the printed materials themselves, the parties dispute
the actual number of pages sent to Starr. Those materials have
been destroyed and there is apparently no record of precisely how
many pages were included in the mailing. Starr says that, after
the events in question, he was able to use the prison’s computers
to successfully print out “the specific sections” of the statute
and regulations he sought “and they total only 38 pages.”
Plaintiff’s memorandum (document n o . 20-2) at 2 . Defendants, on
the other hand, represent that they have printed out those
materials and say they comprise 132 pages. The discrepancy, say
defendants, is because Starr printed only excerpts of the
statutory or regulatory materials, rather than the ”complete
printouts of RSA 21-H, RSA 6 2 2 , and the Nursing Board Rules,”
Complaint, Exhibit 6-d, at para. 4 . , as he had originally
requested. Defendants’ reply memorandum (document n o . 24) at 2 .
Construing the record in the light most favorable to Starr, the
6 court will assume that the mailing directed to Starr was
comprised of thirty-eight pages of Internet printouts.
Starr says (and defendants do not dispute) that, on February
2 6 , 2004, he deposited into the E-Pod request slip box an inmate
request slip (“IRS”) appealing the rejection of the printed
materials. The IRS was not received by prison authorities until
March 1 , 2004, by which time Starr’s materials had already been
destroyed. On March 1 0 , 2004, Warden Bruce Cattell responded to
Starr’s IRS, informing him that the materials had been destroyed,
and stating (probably in error) that Starr had failed to file a
timely appeal.2
2 Neither Starr nor the State has pointed the court to a controlling definition of the phrase “business days,” as used in the PPDs. Accordingly, the court assumes that phrase has its customary meaning - that i s , days other than weekends and federal holidays — and that traditional counting rules apply as well. Under that definition of the phrase, and assuming Starr actually deposited his initial IRS in the appropriate box on February 2 6 , 2004, it was filed in a timely manner. That is to say, it was filed within five business days of the notice informing him that his mail had been rejected and would be destroyed as excess/ unauthorized property if he did not make arrangements for its removal.
But, as defendants point out, Starr’s initial IRS challenged the rejection of his mail. It did not specifically challenge (or even mention) the prison’s plan to destroy that material if Starr did not appeal. See Complaint, Exhibit 5 . Consequently, defendants say they were entirely correct to rule that Starr did not timely appeal the decision to destroy the materials. And, it follows that defendants believe the subsequent destruction of that material was completely appropriate. Again, however, the material was probably not “excess” until the rejection was final, which it was not. To
7 Two weeks later, on March 2 4 , Starr filed a separate IRS,
complaining about the destruction of the materials. Unit Manager
Robert Thyng responded, again, arguably in error, that Starr had
failed to file a timely appeal of the decision to reject his
printed materials as violative of the Publisher’s Only Rule and
to destroy them as unauthorized materials. Starr filed a second-
level grievance to the warden, who also responded that the
materials were destroyed because Starr failed to file an appeal
within the required five-day period. Starr’s third-level appeal
to the Commissioner was denied on the same grounds. This
litigation ensued.
Discussion
In his complaint, Starr advances three claims: first, that
defendants violated his First Amendment rights by refusing to
allow him to receive copies of N.H. Rev. Stat. Ann. (“RSA”) ch.
622 and ch. 21-H, which a friend printed off the Internet and
mailed to him (count o n e ) ; next, that defendants violated his
Fourteenth Amendment right to due process by failing to provide
the review required by Department of Corrections policy prior to
rejecting his mail (count t w o ) ; and, finally, that defendant
Coulombe violated his Fourteenth Amendment right to due process
avoid future problems, the prison ought to consider clarifying the apparent inconsistencies in its policies.
8 by “inhibiting his appeal of the rejection of his mail,”
Complaint at para. 14 (count three). The magistrate judge
charitably construed Starr’s third count as asserting a claim
that “the seizure and destruction of his mail, and the denial of
due process that followed, constituted unconstitutional
retaliation for the exercise of his First Amendment rights.”
Order (document n o . 4 ) at 2 4 . Starr has embraced that generous
construction of his complaint and, although he has not sought to
amend his complaint to specifically state a retaliation claim, he
has implicitly attempted to do s o . See Plaintiff’s memorandum
(document n o . 20-2) at 1 4 . Because the magistrate judge
construed the complaint to allege a retaliation claim, the court
will treat the complaint as though it actually advances such a
claim.3
3 As the court reads Starr’s complaint, it is difficult to see how count three actually alleges a retaliation claim. While Starr complains about defendant Coulombe’s decision to issue the five-day notice (regarding proposed destruction of the materials at issue), he does not allege that Coulombe was acting in retaliation for any conduct in which Starr had engaged. In fact, Starr repeatedly says it was Coulombe’s routine practice to issue the five-day notice whenever any inmate’s mail was rejected. See, e.g., Complaint at para. 44 (“The Plaintiff asserts that Coulombe’s unauthorized issuance of the 5-day notice was not an isolated incident, but was rather routine action when any mail was rejected by the LRC.”).
9 I. Count One - First Amendment.
As noted above, the prison refused to deliver the statutory
and regulatory materials that were printed off the Internet and
mailed to Starr because the Literary Review Committee concluded
that those materials were too voluminous and violated the
Publisher’s Only Rule. See PPD 5.26. And, soon after those
materials were rejected, they were destroyed as excess,
unauthorized property. See PPD 9.2. Starr claims those actions
violated his First Amendment rights. The court disagrees.
When a correctional facility’s regulations interfere with an
inmate’s constitutionally protected rights, such regulations are
valid only if they are “reasonably related to legitimate
penological interests.” Turner v . Safley, 482 U.S. 7 8 , 89
(1987). To assist lower courts in determining whether a
challenged regulation passes constitutional scrutiny, the Supreme
Court identified four factors that should be considered:
1. whether there is a logical, valid connection between the regulation and the penological goal(s) sought to be advanced by that regulation - a connection that is not so remote as to render the policy arbitrary or irrational;
2. whether there are alternate means by which the inmate might exercise the asserted constitutional right - means that remain open to him despite his incarceration;
10 3. whether the accommodation requested by the inmate so that he might exercise the asserted constitutional right would have an adverse effect on guards, other inmates, and/or the allocation of prison resources; and, finally,
4. whether there are any obvious, easy alternate means by which the prison might accommodate the inmate’s exercise of the asserted right.
See Id. at 89-92. See also Shaw v . Murphy, 532 U.S. 223, 229-30
(2001). Importantly, however, the Supreme Court urged lower
courts to exercise restraint and give appropriate deference to
the expert judgments of prison administrators.
Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration i s , moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.
Turner, 482 U.S. at 84-85. See also Beard v . Banks, 548 U.S.
521, 536-37 (2006) (Thomas, J., concurring) (“Judicial scrutiny
of prison regulations is an endeavor fraught with peril. Just
last Term, this Court invalidated California’s policy of racially
segregating prisoners in its reception centers, notwithstanding
that State’s warning that its policy was necessary to prevent
prison violence. California subsequently experienced several
instances of severe race-based prison violence, including a riot
11 that resulted in 2 fatalities and more than 100 injuries, and
significant fighting along racial lines between newly arrived
inmates, the very inmates that were subject to the policy
invalidated by the Court.”) (citation omitted).
Applying the four Turner factors to the instant case, the
court concludes that Starr’s First Amendment rights were not
unlawfully infringed.4 First, the prison’s Publisher’s Only Rule
seeks to advance obvious legitimate penological goals, and there
is a logical, valid connection between the regulation and those
goals - a connection that is neither arbitrary nor irrational.
Defendants point out that Starr’s materials were rejected, not
because of their content, but because of the large volume of
written material on the many pages of paper that were included in
the single mailing. And, say defendants, the “penological
interest in regulating the volume of Internet printouts i s , in
this case, the prevention of harmful information that might be
contained within the pages. No cursory review of the printouts
could have detected such a danger.” Defendants’ memorandum
(document n o . 14-2) at 8 . Defendants go on to point out that:
Typewritten material is not rejected outright. The concern with Internet printouts is that large volumes
4 Starr does not challenges the Publisher’s Only Rule on its face. Instead, he claims that it was applied to him in an unconstitutional manner. See Complaint at para. 3 2 .
12 of material can be easily printed and sent to inmates. Prison officials need to do a thorough search of every page to be sure there is nothing contained in or on the pages that might pose a security risk (i.e., an escape plan buried in one of the pages). . . . [T]he same concern does not exist for typed letters because the risk of a large number of inmates being constantly sent voluminous typed letters does not exist.
Id.5
The penological concerns identified by defendants are
plainly legitimate, as is the State’s interest in limiting the
amount of staff resources that must be devoted to reviewing
incoming inmate mail. See, e.g., Jackson v . Frank, 509 F.3d 389,
391 (7th Cir. 2007) (With regard to the first [Turner] factor, we
conclude that the defendants’ economic interest in saving staff
resources [with respect to reviewing incoming inmate mail] is
legitimate.”). See generally Bell v . Wolfish, 441 U.S. 5 2 0 , 550-
51 (1979) (concluding that a prison’s publisher’s only rule did
not violate inmates’ First Amendment rights); Jones v . N.C.
Prisoners’ Labor Union, Inc., 433 U.S. 119, 133 n.9 (1977) (“The
informed discretion of prison officials that there is potential
5 Although the prison regulations in effect when Starr’s materials were rejected did not specifically address voluminous Internet printouts, those regulations currently allow inmates to receive up to ten pages of such materials. Presumably, that is because the effort necessary to read and review up to ten pages of material printed from the Internet does not impose an undue burden on prison officials. See Defendants’ memorandum, Exhibit H , PPD 5.26.
13 danger may be sufficient for limiting rights even though this
showing might be unimpressive if submitted as justification for
governmental restriction of personal communication among members
of the general public.”) (citation and internal punctuation
omitted).
Turning to the next Turner factor, the record reveals that
there are alternate means by which inmates like Starr can acquire
the very materials at issue in this case. The prison provides
inmates with access to computers capable of retrieving and
printing New Hampshire statutes and administrative regulations.
In fact, Starr concedes that he was able to get precisely the
materials at issue in this case by using the prison’s computers.
Of course, Starr complains that because those computers were
“locked-out” when he attempted to acquire the statutes and
regulations, he was unable to acquire them without experiencing
some delay. There i s , however, no evidence that the “lockouts”
of which Starr complains were purposefully created by any one or
more of the defendants. Nor is there any evidence suggesting
that the delay in acquiring the printed materials adversely
affected Starr in any way. Although Starr asserts that he had
ongoing (and perhaps even contemplated additional) litigation at
14 the time, nothing in the record suggests the brief delay in
getting those materials adversely affected that litigation.6
The remaining two Turner factors can be addressed relatively
briefly. For the reasons discussed above, allowing inmates to
receive voluminous mailings containing Internet printouts would
place a substantial burden on the correctional officers charged
with screening incoming inmate mail. And, finally, as has been
noted, the prison already accommodates inmates’ exercise of the
right Starr asserts: inmates are afforded access to computers
through which they can obtain both statutory and regulatory
materials.
Defendants’ application of the prison’s publisher’s only
rule was valid and reasonably related to legitimate penological
interests. As to count one of Starr’s complaint, then,
defendants are entitled to judgment as a matter of law.
6 In his complaint, Starr alleges that the computer “lockouts” which prevented him from accessing the statutory and regulatory materials lasted “for approximately three weeks.” Complaint at para. 3 3 . Since the first time Starr claims to have encountered those lockouts was in November of 2003, it is reasonable to infer that he was able to use (or could have used) the prison’s computers to obtain the materials in question at some point in December of 2003. The mailing at the center of this dispute arrived at the prison on December 2 3 , 2003. Thus, it would certainly seem that the delay (if any) that Starr incurred in obtaining those materials was de minimus.
15 II. Count Two - Due Process.
In count two of his complaint, Starr asserts that he was
deprived of due process, in violation of the Fourteenth
Amendment, because although “Defendants had a clearly established
policy outlining the manner of pre-deprivation review, [they]
failed to follow their own policy.” Complaint at para. 3 8 . At
this point, it is probably appropriate to note what Starr does
not claim: he “is not asserting a claim for the loss of the
physical printouts, but rather is asserting a claim of the denial
of his First Amendment right and due process right under the
Fourteenth Amendment, namely improper review and interference
with the right to appeal.” Plaintiff’s memorandum (document n o .
20-2) at 2 1 . See generally Parratt v . Taylor, 451 U.S. 527
(1981); Logan v . Zimmerman Brush Co., 455 U.S. 422 (1982).
Specifically, Starr complains that prison policy provides
that the LRC shall be comprised of three members: “a
representative from security, mental health, and education.” PPD
5.26 IV(C). And, says Starr, contrary to the policy directive,
the LRC that reviewed his materials was comprised of five
members, none of whom was from the education department. See
Complaint at para. 41 (“There was no authorization in PPD 5.26 to
allow administrative personnel such as unit managers to sit on
the LRC. The number [sitting on] the board was also against
16 policy. The LRC, according to policy, is limited to three
members. The LRC in this instance had five security members
sitting in review. Therefore, the members that sat on the LRC
had no authority to sit, review, nor vote on the rejection of the
material. Where the LRC did not have authority to seat five
security members, those members’ actions were invalid.
Therefore, the Plaintiff was denied the due process guaranteed to
him by the policy governing the processing and review of his
mail.”) (emphasis supplied).
Contrary to Starr’s suggestion, he was not denied his
constitutionally protected right to procedural due process simply
because the committee that convened to review incoming inmate
mail (including Starr’s) had five members, rather than three, or
because it included representatives from the prison’s
administration, or because it lacked a member from the education
department. As the Supreme Court has observed:
The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.
Zinermon v . Burch, 494 U.S. 113, 126 (1990).
17 Here, the process the State provided was constitutionally
adequate. The mere fact that the composition of the LRC failed
to comport precisely with prison regulations does not compel the
conclusion that Starr was deprived of his constitutionally
protected right to procedural due process. The federal
constitution does not prescribe a minimum standard for the
composition of the prison’s literary review committee and, in any
event, the irregularity identified by Starr has not been shown,
or even argued, to have adversely affected some substantive or
material interest. See generally Kentucky Dep’t of Corrections
v . Thompson, 490 U.S. 454 (1989) (establishing a two-part test to
resolve inmate due process claims). See also Levine v . Torvik,
986 F.2d 1506, 1515 (6th Cir. 1993) (“A state cannot be said to
have a federal due process obligation to follow all of its
procedures; such a system would result in the constitutionalizing
of every state rule, and would not be administrable.”). Shango
v . Jurich, 681 F.2d 1091, 1101 (7th Cir. 1982)
(“Constitutionalizing every state procedural right would stand
any due process analysis on its head. Instead of identifying the
substantive interest at stake and then ascertaining what process
is due to the individual before he can be deprived of that
interest, the process is viewed as a substantive end in
itself.”).
18 Starr’s procedural due process claim is limited to the
composition of the LRC. Nevertheless, the court notes,
parenthetically, that Starr’s various appeals of the LRC’s
decision to reject the printed materials may have been denied on
erroneous grounds. It appears that prison officials (at each
level of the appellate process) mistakenly thought Starr had only
five calendar days to lodge his appeal, rather than five business
days (or, depending upon which PPD actually controlled, perhaps
as many as ten days). Accordingly, those officials may have been
wrong when they deemed Starr’s initial appeal to have been
untimely. See note 2 , supra. But, even if Starr’s grievance was
denied at each level of the administrative appeal process based
on incorrect reasoning, that fact alone would not give rise to a
viable procedural due process claim. In other words, Starr was
not denied procedural due process simply because the individuals
addressing his various grievances and appeals arguably got it
wrong. Under those circumstances, the only claim that Starr
might assert - though, for good reason, he does not raise it - is
that he was denied substantive due process. But, even if he had
raised such a claim, it would not survive, given the undisputed
facts of record, and the absence of any conscious—shocking state
conduct.
19 III. Retaliation.
In the final count of his complaint, as implicitly amended
by his legal memorandum, Starr asserts that defendant Coulombe
“retaliated against the Plaintiff by refusing to deliver the mail
in question when it initially arrived at the prison, and chose to
have it reviewed by the LRC, and ultimately voted to reject it as
a member of the LRC.” Plaintiff’s memorandum at 1 4 . As this
court recognized in one of Starr’s earlier lawsuits:
To prevail on a claim of retaliation, a prisoner must establish (1) a specific constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation. Causation requires a showing that “but for the retaliatory motive the complained of incident . . . would not have occurred.” Johnson v . Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (quoting Woods v . Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)).
Starr v . Dube, 05-CV-264-SM, 2007 DNH 153 at 8 (D.N.H. Dec. 1 2 ,
2007) (quoting McDonald v . Steward, 132 F.3d 225, 231 (5th Cir.
1998)).
Here, even construing the record in the light most favorable
to Starr, there is insufficient evidence from which a properly
instructed, reasonable trier-of-fact could conclude that
Coulombe’s decision (as one member of the five-person LRC) to
reject the printed materials under the Publisher’s Only Rule was
motivated by an intent to retaliate against Starr for having
20 previously litigated against the prison. To be sure, Starr
points to Coulombe’s knowledge of those prior suits as evidence
permitting an inference of a retaliatory motive. He also
suggests that some material printed from the Internet was
actually delivered to him on other occasions, but says when
Coulombe saw that the materials at issue in this suit were legal
materials, he decided not to deliver them.7
Nevertheless, whatever inferences may be properly drawn from
such evidence, they are, as a matter of law, insufficient to
permit Starr’s claims to go to a jury. Among other things, Starr
has not pointed to any evidence which would support the causation
element of his claim. That i s , he has failed to point to any
evidence suggesting that the five-member LRC that was convened
would not have rejected his mail if Coulombe had not harbored a
discriminatory animus against him.
7 The relevance of the other Internet materials Starr claims to have received is questionable. As defendants point out, “These [other Internet] printouts . . . only amount to 19 pages, which consist mostly of pictures (the pictures make it easier to search the content for unauthorized material). There is no evidence that these were sent [to Starr] in early 2004, or that they were sent together.” Defendants’ reply memorandum (document n o . 24) at 3 . In other words, it is entirely possible that those materials were delivered to Starr in groups of less than ten pages and were, therefore, entirely consistent with the new PPD governing Internet mailings. Even if they were sent to Starr before the PPD was amended, they are of sufficiently few pages that it was not unreasonable for prison officials to review them and pass them along to Starr, rather than withhold them as too voluminous to search.
21 Conclusion
For the foregoing reasons, as well as those set forth in
defendants’ memoranda (documents n o . 14-2, 1 9 , and 2 4 ) , the
rejection (and eventual destruction) of the materials in question
did not impose an unreasonable burden on Starr’s First Amendment
rights. Nor was Starr’s constitutionally protected right to
procedural due process violated simply because the Literary
Review Committee was not composed in precise accordance with
prison administrative rules. And, finally, the record
establishes that Starr did not suffer any unlawful or
unconstitutional retaliation for having previously brought
litigation against prison officials.
On this record, it is plain that the slight delay Starr
experienced in obtaining the statutory and regulatory materials
he sought did not interfere with his pursuit of any state or
federal litigation, whether pending or contemplated. At most,
Starr was minimally inconvenienced by the technical (and, based
on the record evidence, entirely unintentional) computer problems
that delayed his ability to acquire the materials in question.
He was not, however, deprived of any constitutionally protected
rights.
22 Plaintiff’s motion for partial summary judgment (document
n o . 15) is denied, as is his motion for findings of fact
(document n o . 1 6 ) . Defendants’ motion for summary judgment
(document n o . 14) is granted. The Clerk of Court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
Steven J. ___ McAuliffe Chief Judge
January 29, 2009
cc: Darren Starr, pro se John R. Lilly, Esq. John Vinson, Esq., NH DOC Nancy Smith, Esq., NH AG’s Office