Towle v. NH DOC et al CV-06-464-JL 05/14/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert V. Towle
v. Civil N o . 06-cv-464-JL Opinion N o . 2008 DNH 101 New Hampshire Department of Corrections, Commissioner, et a l .
O R D E R
Pro se petitioner Robert V. Towle brought this civil rights
action under 42 U.S.C. § 1983 against the Commissioner of the
Department of Corrections (DOC), as well as the Warden and Deputy
Warden of the New Hampshire State Prison, alleging violations of
his rights under the First Amendment of the United States
Constitution.1 The First Amendment right in question is the
freedom of association involving visitation by Towle’s wife.
This court has subject matter jurisdiction over this case under
28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights).
The respondents moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), arguing that Towle’s claims for injunctive
and declaratory relief are moot. See Fed. R. Civ. P. 12(b)(6).
1 Towle’s initial complaint also alleged violation under the Eighth and Fourteenth Amendments. Those claims were dismissed, without objection by Towle, upon the recommendation of the Magistrate Judge. Towle v . N.H. Dept. of Corrections, N o . 06-cv-464-PB, slip op. at 14-15 (D.N.H. Feb. 5 , 2007). Because the parties, and in particular the respondents,
have presented matters outside the pleadings, the court will
treat the motion as one for summary judgment under Rule 5 6 . Fed.
R. Civ. P. 12(d) (2008). After a hearing on the motion, for the
reasons set forth below, the court finds that Towle’s claims are
moot, and grants summary judgment in favor of the respondents.
I. APPLICABLE LEGAL STANDARD
Under Federal Rule of Civil Procedure 5 6 , a motion for
summary judgment will be granted “if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c) (2008) (amended December 1 , 2007); see Celotex Corp. v .
Catrett, 477 U.S. 317, 322 (1986) (decided under prior version of
the rule); Anderson v . Liberty Lobby, Inc., 477 U.S. 242, 247
(1986) (decided under prior version of the rule). "The object of
summary judgment is to pierce the boilerplate of the pleadings
and assay the parties' proof in order to determine whether trial
is actually required." Dávila v . Corporación de P.R. Para la
Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007) (quotations
omitted) (quoting Acosta v . Ames Dep’t Stores, Inc., 386 F.3d 5 ,
7 (1st Cir. 2004)).
2 When as here2 the party moving for summary judgment also
bears the burden of proof at trial, summary judgment will not be
granted unless, based on the record taken in the light most
favorable to the nonmoving party, no reasonable jury could find
for the nonmoving party. See E.E.O.C. v . Union Independiente de
la Autoridad de Acueductos y Alcantarillados de P.R., 279 F.3d
4 9 , 54-55 (1st Cir. 2002); Winnacunnet Coop. Sch. Dist. v . Nat’l
Union Fire Ins. C o . of Pittsburgh, 84 F.3d 3 2 , 35 (1st Cir.
1996). To defeat a motion for summary judgment, "the non-moving
party must set forth specific facts showing that a genuine issue
of material fact exists as to each issue upon which she would
bear the ultimate burden of proof at trial.” Torres-Negron v .
Merck & Co., 488 F.3d 3 4 , 39 (1st Cir. 2007) (quotations
omitted). Further, the non-moving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. C o . v . Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and “may not rest upon the mere
allegations or denials of his pleading.” Id. at n.11 (quotations
omitted).
2 The respondents have asserted the doctrine of mootness as an affirmative defense. Since they carry the burden of proving this defense at trial, they carry the burden on this motion.
3 II. BACKGROUND
This action stems from DOC regulations3 that allegedly
excluded Towle’s wife, Katie Wilmot, from his NHSP visitor list.
3 The version of New Hampshire Department of Corrections Policy and Procedure Directive (“PPD”) 7.09 in effect at the time the complaint was filed provided, in pertinent part:
IV. PROCEDURE
I. Visiting Lists
1. Inmates must request that a prospective visitor be placed on the approved visitor list at least 14 days prior to that person visiting.
4. Potential visitors with criminal records or who are on probation/parole will not be granted visiting privileges. A direct family member (father, mother, sister, brother, child, spouse, aunts, uncles, grandparents, sister-in-law or brother-in-law) of an inmate who is also on probation/parole may be authorized to visit only with the written approval of the Warden and the supervising PPO. . . . Potential visitors with drug convictions within the last five years and/or confinement for any offense within the last five years will be excluded. Exception to this policy may be made by written appeal to the Warden. Any articulable risk to security will exclude a visitor.
5. A visitor cannot appear on more than one inmate’s approved visitor list unless the inmates are related to each other and the visitor is under the immediate family description. Immediate family for the purpose of this policy means, mother, father, children, spouse, brother, sister, grandparents, aunts, uncles, sister-in-law and brother-in-law).
PPD 7.09 IV, I ( 1 ) , ( 4 ) , (5) (Feb. 1 5 , 2006) (emphasis added).
4 As a result of this exclusion, Towle was denied visits with
Wilmot. On July, 1 2 , 2006, Wilmot was denied approval to be
placed on Towle’s visitor list because of her criminal history.
The record reveals that Wilmot was convicted of theft by
unauthorized taking from Wal-Mart and was sentenced to two years
probation. There is no indication that she was convicted of any
drug offense or subjected to any period of confinement.
Towle filed a second-level appeal with Warden Cattell in
which he identified Wilmot as his wife and requested that she be
placed on his visitor list. Cattell denied the appeal on August
2 8 , 2006, stating that Wilmot’s felony conviction was only three
years old and that her marital status was irrelevant. Cattell
advised Towle to maintain his relationship with Wilmot through
letters and collect telephone calls.
On September 3 , 2006, Towle filed a third-level appeal with
Wrenn, the Commissioner of Corrections, in which he requested
that Wilmot be placed on his visitor list and that an exception
be made to NHSP policy because the benefit of their visit would
outweigh any security risk. Greg Crompton, Commissioner Wrenn’s
designee to address such grievance appeals, denied the request on
September 1 3 , 2006, explaining that Wilmot’s “conviction date
5 does not meet the [five-year] requirement.”4 Towle filed another
appeal with Crompton on September 2 8 , 2006, stating that the
five-year requirement under PPD 7.09 I(4) should not apply to
Wilmot because she was neither convicted of a drug offense nor
confined. Crompton responded on October 9, 2006, explaining that
he had “delegated authority to respond to all Commissioner level
appeals and grievances” and again denied Towle’s appeal.
In a letter of October 1 3 , 2006 addressed to Wrenn, Wilmot
explained her criminal history and essentially reiterated the
requests made by Towle. Crompton responded on October 3 0 , 2006,
stating that “Warden Cattell’s letter of 8/8/06 stands.”
Towle filed another appeal with Cattell on November 4 , 2006,
reiterating his argument that the five-year requirement under PPD
7.09 IV, I(4) should not apply to Wilmot because she was never
convicted of a drug offense or subjected to a period of
confinement. Cattell responded on November 8 , 2006, explaining
that PPD 7.09 IV, I(4) “excludes two categories but it does not
indicate that people who were convicted of other felonies or
received suspended sentences will be approved as visitors. When
4 As established at the preliminary injunction hearing, Crompton’s ruling was based on a misinterpretation of PPD IV, I(4) as it existed at the time. See PPD IV, I(4) (Feb. 1 5 , 2006).
6 I responded to you on this issue on 8/28/06 I was aware of PPD
7.09. What I wrote to you then still stands today.”
Towle filed an appeal with Crompton on November 8 , 2006.
Crompton denied his request on November 1 6 , 2006. Towle then
brought this Section 1983 action, alleging that the respondents’
acts and omissions rise to the level of constitutional
deprivations.
In 2007, the Department of Corrections promulgated a new
Policy and Procedure Directive 7.09, which superseded the version
of PPD 7.09 in effect at the time Towle initiated suit.5 A
Effective as of May 1 5 , 2007, the new PPD 7.09 provides provides as follows:
B. Authorized Visitors
DOC Staff must approve all visitors. Inmates will be authorized an unlimited number of family members on their visiting list. Non-family members will be limited in accordance with COR 305.02.
Visitors being taken off an inmate’s list will be removed immediately and cannot be added to any inmate’s visiting list for a one-year period.
4. Potential visitors with criminal records involving felony drug offenses within the last 10 years from date of conviction will
7 supplemental affidavit filed by the respondents asserts that
under PPD 7.09 as amended above, Towle’s wife has been deemed
eligible to visit Towle and that Towle submitted an inmate
visitor request slip in November, 2007. As a result, Towle’s
wife was approved for visitation and made visits to Towle in
not be allowed to visit.
5. Potential visitors with criminal records involving misdemeanor drug offense within the last 5 years from date of conviction will not be allowed to visit.
6. Potential visitors with pending drug related offenses (felony or misdemeanor) will be not allowed to visit.
7. Potential visitors with a criminal history which resulted in confinement to a correctional facility for any offense within the last 5 years regardless of the duration of the confinement will not be permitted to visit.
8. Potential visitors with any criminal record for non-drug related [sic] within 1 year from date of the most recent criminal conviction will be not be [sic] permitted to visit.
9. Potential visitors who are on probation/parole will not be granted visiting privileges without the written recommendation of the supervising probation/parole officer and the written approval of the warden. Consideration will be given for direct family members only (father, mother, sister, brother, child, spouse, aunts, uncles, grandparents, sister-in-law or brother-in- law).
PPD 7.09 IV(B), (I)(4)-(9) (2007).
8 November and December, 2007, and continued monthly visits
beginning in January, 2008.
III. ANALYSIS
A. The applicable law
Section 1983 creates a cause of action against those who,
acting under the color of state law, violate federal law. See 42
U.S.C. § 1983; Parratt v . Taylor, 451 U.S. 527, 535 (1981)
(overruled on other grounds by Daniels v . Williams, 474 U.S. 327,
330-31 (1986)); Conn v . Gabbert, 526 U.S. 286, 290 (1999). The
premise of Towle’s Section 1983 claim is that the respondents
violated his First Amendment right to intimate association by
placing impermissibly burdensome restrictions on his wife’s
ability to visit him in prison.6
The respondents argue that they are entitled to summary
judgment because DOC has amended PPD 7.09 in such a way that
permits his wife routine visitation in the same general manner
6 Because, as set forth infra Parts III, IV, summary judgment is granted to the respondents on grounds that are primarily procedural, it is not necessary to analyze the merits of that claim. The court notes, however, that it concurs with the Magistrate Judge’s ruling on Towle’s motion for a preliminary injunction that, even under PPD 7.09 IV as it existed prior to the amendment described supra, Towle was “not likely to succeed on the merits of his First Amendment claim.” (Towle, slip op. at 2 3 ) . See generally, Overton v . Bazzetta, 539 U.S. 126, 131-32, 135 (2003).
9 available to all inmates’ spouses. This amendment, they argue,
renders Towle’s Section 1983 claim moot as a matter of law.
“Simply stated, a case is moot when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” D. H. L. Assoc., Inc. v . O’Gorman, 199
F.3d 5 0 , 54 (1st Cir. 1999) (quoting Powell v . McCormack, 395
U.S. 486, 496 (1969)); Gulf of Maine Fisherman’s Alliance v .
Daley, 292 F.3d 8 4 , 87 (1st Cir. 2002). The seminal Supreme
Court case on the mootness doctrine, as well as the exception to
the doctrine involved in this case, is United States v . W . T .
Grant Co., 345 U.S. 629 (1953). There, the Court recognized “the
abstract proposition that voluntary cessation of allegedly
illegal conduct does not deprive the tribunal of power to hear
and determine the case, i.e., does not make the case moot.” Id.
at 897. This is because a defendant who wins a mootness-based
dismissal “is free to return to his old ways. This, together
with a public interest in having the legality of the practices as
settled, militates against a mootness conclusion.” Id. (citing
United States v . Trans-Missouri Freight Ass’n, 166 U.S. 290, 309-
310 (1897) (footnote omitted)).
The W . T . Grant court continued, however, that a “case may
nevertheless be moot if the defendant can demonstrate that there
10 is no reasonable expectation that the wrong will be repeated.”
Id. at 633 (quotation and footnotes omitted).
Thus, the standard for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: A case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. The heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to recur lies with the party asserting mootness.
Friends of the Earth, Inc. v . Laidlaw Envtl. Servs. (TOC, I n c . ) ,
528 U.S. 167, 170 (2000) (citation omitted).
A legislative repeal or amendment of a statute in a manner
that satisfies the plaintiff’s complaints normally justifies a
finding of mootness because the legislative change makes it
unlikely that the wrong will be repeated.” 1B Martin Schwartz,
Section 1983 Litigation: Claims and Defenses § 15.04[B][2] at 15-
23 and n.88 (3d ed. 2007) (citing examples of legislative and
administrative agency amendments to laws, regulations and
policies). The First Circuit has recognized this corollary to
the voluntary change exception to the mootness doctrine. See,
e.g., D.H.L. Associates, 199 F.3d at 54-55 (legislative
amendments to offending ordinance rendered case moot). It is of
no consequence that the amendments in this case were made to
rules and regulations as opposed to a statute or ordinance, and
by an executive branch agency as opposed to a legislative body.
11 The corollary to the “voluntary cessation” exception applies
nonetheless. “The promulgation of new regulations and amendment
of old regulations are among such intervening events as can moot
a challenge to the regulation in its original form.” Gulf of
Maine, 292 F.3d at 88 (involving New England Fisheries Management
Council regulations). “There is no question that a case can be
mooted by promulgation of new regulations or by amendment or
revocation of old regulations.” Save Our Cumberland Mountains,
Inc. v . Clark, 725 F.2d 1422, 1432 n.27 (D.C. Cir. 1984).
Under this framework of established law, the petitioner’s
case is moot. The parties’ respective filings, and the evidence
taken at the preliminary injunction hearing establish that
Towle’s wife was denied visitation for two reasons: (1) a
mistaken belief by the prison administration that she had been
convicted of a felony drug offense within a five year period
prior to her request for visitation, and (2) a broad
interpretation of the former PPD 7.09's presumptive prohibition
of visitation by “potential visitors with criminal records”
without giving due consideration to the warden’s discretionary
authority to allow visitation by immediate family members of
prisoners, including those with criminal records. The first
ground for denial is irrelevant in this case. It cannot be cured
12 through injunctive relief, and Towle’s amended complaint makes no
claim for money damages.
The second ground, however, was directly addressed by the
amendments to PPD 7.09. As amended and currently effective, PPD
7.09 contains no presumptive prohibition against visits by those
“with criminal records.” It makes finer, more clearly defined
distinctions among potential ineligible visitors, namely, those
with drug-related offenses, ex-convicts, probationers, parolees,
and individuals with recent convictions. It is thus, less
subject to overbroad interpretation or outright
misinterpretation. None of the above-listed distinctions
provides a basis to deny visitation to Katie Wilmot. Wilmot,
moreover, has been granted and currently enjoys visiting
privileges with Towle at the prison. Thus, DOC’s administrative
overhaul to the applicable regulation, PPD 7.09, renders Towle’s
request for injunctive relief moot. See Gulf of Maine, 292 F.3d
at 88 (new regulations can moot a challenge to a regulation in
its original form); Jews for Jesus, Inc. v . Hillsborough County
Aviation Auth., 162 F.3d 627, 629-30 (11th Cir. 1998) (county-
based aviation authority’s change in policy regarding literature
distribution at airport rendered case moot); Free v . Landrieu,
666 F.2d 698, 702-04 (1st Cir. 1981) (reconsideration of
interpretation of challenged amendment in light of other federal
13 regulations rendered case moot); McKenna v . Peekskill Housing
Authority, 647 F.2d 332, 334 (2d Cir. 1981) (housing authority’s
administrative recision of challenged rule rendered case moot).
All of these cases follow the Supreme Court’s practice, whether
the policy change was legislatively enacted or administratively
promulgated, to evaluate claims for injunctive relief “in light
of the [applicable law] as it now stands, not as it once did.”
Hall v . Beals, 396 U.S. 4 5 , 48 (1969) (citing Thorpe v . Housing
Authority, 393 U.S. 268, 281-82 (1969)).
A related argument not nominally advanced by Towle, yet
nonetheless raised by the respondents, is whether, despite the
administrative change to PPD 7.09, Towle’s claims are “capable of
repetition, yet evading review.” Such claims will not be
dismissed on mootness grounds. See e.g., Dionne v . Bouley, 757
F.2d 1344, 1348 (1st Cir. 1985).
If Towle’s complaint contained a colorable, well-pleaded
claim for damages under Section 1983, it is possible that that
portion of his case may have survived a mootness challenge. His
original complaint did in fact assert a claim for damages, but
his amended complaint contains no such request, and is limited to
injunctive and declaratory relief. As those claims are now
14 moot,7 his entire action is subject to dismissal. Flittie, 724
F.2d at 82 (where prisoner’s civil rights suit originally
requested compensatory and punitive damages, but amended
complaint requested only injunctive and declaratory relief plus
costs, plaintiff had abandoned request for damages, and his case
was moot); cf. Sutton, 323 F.3d at 249 (where prisoner’s civil
rights claims for declaratory and injunctive relief were
dismissed under mootness doctrine, money damages claims survived
despite prison’s policy changes and transfer of plaintiff to
different facility); but see Tawaab v . Metz, 554 F.2d 2 2 , 24 n.4
(2d Cir. 1977) (where prisoner’s equitable claims dismissed on
mootness grounds, but complaint also contained a general demand
for damages, entire case dismissed where “[a]ny award of damages
on the facts of this case, as alleged in the complaint, would be
so remote and speculative that it could not stand.”).
7 In both his summary judgment filings and at oral argument, the petitioner vigorously maintained that even if his equitable claims were dismissed as moot, he was nonetheless entitled to a jury trial on his claims for a declaratory judgment. He cites no authority to support this proposition, and there is abundant authority suggesting the opposite--that when equitable claims are dismissed as moot, the dismissal also covers claims for declaratory relief. See, e.g., Sutton v . Rasheed, 323 F.3d 236, 249 (3rd Cir. 2003); D.H.L. Assoc., 199 F.3d at 5 4 ; ; Jews for Jesus, 162 F.3d at 629-30; Pembroke v . Wood County, Tex., 981 F.2d 225, 228 (5th Cir. 1993); Flittie v . Erickson, 724 F.2d 8 0 , 82 (8th Cir. 1983); Free, 666 F.2d at 704; McKenna, 647 F.2d at 334; Kerr v . Puckett, 967 F. Supp. 354, 363 (E.D.Wis. 1997) (aff’d 138 F.3d 321 (7th Cir. 1998).
15 To come within this exception [to the mootness doctrine, a plaintiff must establish] . . . two elements: (1) the activity being challenged must, by its nature, be of such short duration that it is unlikely to be fully litigated before its cessation or expiration, and (2) there must be a reasonable expectation that the same complaining party will be subjected to the same acts again.
Id., (citing Weinstein v . Bradford, 423 U.S. 147, 149 (1975);
Loeterman v . Town of Brookline, 709 F.2d 116, 118 (1st Cir.
1983)) (bracketed language added). The applicability to this
case, however, of the legislative/administrative modification
exception to the “voluntary cessation” rule demonstrates that the
plaintiff’s claims are not capable of repetition while evading
review. See Tawwab v . Metz, 544 F.2d at 23-24 (where change in
prison policy was “embodied in an official prison document”
presented to the court, it was “absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to
recur”) (quoting United States v . Concentrated Phosphate Export
Ass’n, 393 U.S. 199, 203 (1968)).
16 IV. CONCLUSION
For the reasons set forth above, the respondents are awarded
summary judgment on all claims under the mootness doctrine.
After requesting and receiving special briefing on the issue, the
court further concludes that neither party is entitled to costs
under 42 U.S.C. § 1988 (2003) or Fed. R. Civ. P. 54(d)(1). See
Buckhannon Board and Care Home, Inc. v . W . Va. Dept. of Health
and Human Resources, 532 U.S. 598, 604-06. All other pending
motions are denied as moot. The Clerk is directed to close the
case.
SO ORDERED.
y^Wk^gb Joseph N. Laplante United States District Judge
Dated: May 1 4 , 2008
cc: Robert V. Towle, pro se Glenn A . Perlow, Esq.