WARRENDER v. MAINE DEPT OF CORRECTIONS et al

Filing 8

REPORT AND RECOMMENDED DECISION re 1 Complaint filed by HERBERT F WARRENDER. Objections to R&R due by 4/26/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
HERBERT F. WARRENDER,
Plaintiff
v.
MAINE DEPARTMENT OF
CORRECTIONS, et al.,
Defendants

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2:17-cv-00101-JAW

RECOMMENDED DECISION AFTER SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915(e), 1915A
In this action, Plaintiff Herbert Warrender, an inmate in the custody of the Maine
Department of Corrections (the Department), at the Mountain View Correctional Facility,
alleges the Department has unlawfully denied him credit for time served on a concurrent
sentence. Plaintiff also asserts the Department required that he perform uncompensated
labor and improperly assigned him to the Maine State Prison for a period of time.
Plaintiff has filed an application to proceed in forma pauperis (ECF No. 3), which
application the Court granted. (ECF No. 4.) In accordance with the in forma pauperis
statute, a preliminary review of Plaintiff’s complaint is appropriate.

28 U.S.C. §

1915(e)(2). Additionally, Plaintiff’s complaint is subject to screening “before docketing,
if feasible or … as soon as practicable after docketing,” because he is “a prisoner seek[ing]
redress from a governmental entity or officer or employee of a governmental entity.” 28
U.S.C. § 1915A(a).

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Following a review of Plaintiff’s complaint, I recommend the Court dismiss the
complaint.
STANDARD OF REVIEW
The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure
meaningful access to the federal courts for those persons unable to pay the costs of bringing
an action. When a party is proceeding in forma pauperis, however, “the court shall dismiss
the case at any time if the court determines,” inter alia, that the action is “frivolous or
malicious” or “fails to state a claim on which relief may be granted” or “seeks monetary
relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
“Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so
as to spare prospective defendants the inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
In addition to the review contemplated by § 1915, Plaintiff’s complaint is subject to
screening under the Prison Litigation Reform Act because Plaintiff currently is incarcerated
and seeks redress from governmental entities and officers. See 28 U.S.C. § 1915A(a), (c).
The § 1915A screening requires courts to “identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or
fails to state a claim …; or (2) seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A(b).
When considering whether a complaint states a claim for which relief may be
granted, courts must assume the truth of all well-plead facts and give the plaintiff the
benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640
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F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although a pro se plaintiff’s complaint is subject to “less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), this is
“not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a
claim, Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in
federal court, it is not enough for a plaintiff merely to allege that a defendant acted
unlawfully; a plaintiff must affirmatively allege facts that identify the manner by which the
defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
BACKGROUND FACTS1
Plaintiff alleges that Defendant Fournier, a sergeant with the Androscoggin County
Sheriff’s Office, and Defendant Brochu, Plaintiff’s former attorney, violated Plaintiff’s
constitutional rights. Specifically, Plaintiff asserts Defendant Fournier failed to execute a
personal recognizance bail bond while Plaintiff was in intensive care at a medical facility,
and that Defendant Brochu made an agreement with the State that deprived Plaintiff of
credit for time served and exposed Plaintiff to financial liability for emergency medical
services. (Complaint ¶¶ 2 – 4, ECF No. 1.) Plaintiff also alleges that Defendant Brochu

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The facts set forth herein are derived from Plaintiff’s complaint.

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failed to inform Plaintiff of a motion that was heard in state court on October 12, 2012.
(Id. ¶ 5.)
Plaintiff further asserts the Department miscalculated or omitted credits toward his
state sentence, including time served on a concurrent federal sentence, “day by day service”
credit, and “presentence good time” credit. (Id. ¶¶ 8, 9, 10, 15, 17.) For example, Plaintiff
apparently claims that he should have received credit, pursuant to 17-A M.R.S. § 1253(2),
for good time accrued while serving his federal sentence. (Id. ¶ 13.) Additionally, Plaintiff
alleges the Department placed him in the Maine State Prison because the Department
considered him an “administrative burden” based on his assertions that he had served his
time; he further asserts the Department made him perform “hard labor” without
compensation. (Id. ¶¶ 7, 12.)
Plaintiff claims the Department “owes [him] 597 days credit for day by day service
and 154 days statutory good time.” (Id. ¶ 17.) Plaintiff also requests an award of money
damages against the Department, Defendant Fournier, and Defendant Brochu. (Id. at pp.
4, 8.) 2

The Court does not have before it the state court record. However, the Court’s docket for case number
05-cr-00043-JAW reflects that Plaintiff was detained at the Androscoggin County Jail beginning on or
about November 16, 2010, following arrest on Class B felony state fraud charges and on a motion in this
Court to revoke supervised release. (ECF Nos. 80, 83.) The Court ordered Plaintiff detained pending the
revocation hearing. (ECF No. 92.) The hearing was delayed due to Plaintiff’s unopposed motion for a
psychiatric examination. (ECF Nos. 100, 101.) Plaintiff was committed to the custody of the Attorney
General and was examined at Federal Medical Center Devens, where he was assessed as not competent to
stand trial. At his May 6, 2011, competency hearing, the Court found Plaintiff not competent to stand trial.
(ECF No. 112.) Subsequently, the Court determined Plaintiff was competent to stand trial. (ECF No. 127.)
The Court ultimately revoked Plaintiff’s supervised release and sentenced him to 24 months incarceration.
(ECF No. 132.)
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DISCUSSION
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’” Gunn v. Minton, –– U.S. ––, 133 S. Ct. 1059,
1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994)). “It is to be presumed that a cause lies outside this limited jurisdiction, and the
burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen,
511 U.S. at 377 (citation omitted). “A court is duty-bound to notice, and act upon, defects
in its subject matter jurisdiction sua sponte.” Spooner v. EEN, Inc., 644 F.3d 62, 67 (1st
Cir. 2011). A review of Plaintiff’s complaint fails to reveal a basis upon which this Court
could exercise either federal question jurisdiction or diversity jurisdiction under 28 U.S.C.
§§ 1331 and 1332.
A.

Plaintiff’s Claims Concerning the Duration of His State Sentence
To the extent Plaintiff asserts his claim against the Department, the State and its

agencies are not persons subject to federal court jurisdiction under the Civil Rights Act, 42
U.S.C. § 1983, and the Eleventh Amendment bars the case from proceeding against the
Department in federal court. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989);
Poirier v. Mass. Dep’t of Corr., 558 F.3d 92, 97 n. 6 (1st Cir. 2009); Nieves–Marquez v.
Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003).
In addition, to the extent Plaintiff asserts his claim against Defendant Fournier, a
municipal officer with state authority, although Sergeant Fournier might be susceptible to
suit under the Civil Rights Act, 42 U.S.C. § 1983, Plaintiff has failed to assert any facts
that would support a plausible federal claim against Defendant Fournier. Indeed, the
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relationship between Defendant Fournier’s alleged failure to execute a bail bond and the
Department’s calculation of Plaintiff’s credit toward a state sentence for time served on a
federal sentence is not evident from Plaintiff’s pleading.
Even if Plaintiff’s claim against Defendant Fournier could be construed to assert a
federal claim, because Plaintiff’s claim is premised on his alleged right to release from the
Department’s custody, Plaintiff cannot proceed on a § 1983 civil rights action unless he
first successfully challenges the State’s sentence calculation, either through state court
proceedings or through a federal habeas proceeding. Preiser v. Rodriguez, 411 U.S. 475,
490 (1973) (holding that Congress “determined that habeas corpus is the appropriate
remedy for state prisoners attacking the validity of the fact or length of their confinement,
and that specific determination must override the general terms of § 1983” (emphasis
added)). See also Heck v. Humphrey, 512 U.S. 477, 486 – 87 (1994) (holding that, “in
order to recover damages for allegedly unconstitutional … imprisonment, … a § 1983
plaintiff must prove that the … sentence has been … declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance
of a writ of habeas corpus”). Plaintiff has not alleged, nor does the record otherwise reflect,
that Plaintiff has successfully challenged his sentence in a prior proceeding.
B.

Conditions of Confinement
Plaintiff’s claim based on his transfer to the Maine State Prison and his

uncompensated work is conceivably within the Court’s subject matter jurisdiction under
42 U.S.C. § 1983.

The claim would be based on the Due Process Clause of the

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Constitution. Plaintiff, however, has failed to assert facts that would support a plausible
claim.
“[W]hile persons imprisoned for crime enjoy many protections of the Constitution,
it is also clear that imprisonment carries with it the circumscription or loss of many
significant rights.” Hudson v. Palmer, 468 U.S. 517, 524 (1984). With respect to the Due
Process Clause, “[a]s long as the conditions or degree of confinement to which the prisoner
is subjected is within the sentence imposed upon him and is not otherwise violative of the
Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by
prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242 (1976).
For example, to raise a due process concern over a deprivation of liberty, a prisoner’s
complaint must describe an “atypical and significant hardship … in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
The mere fact that Plaintiff was assigned at some point to the Maine State Prison
does not constitute an atypical and significant hardship. A convicted prisoner does not
have a constitutional right to confinement in a particular facility. Wilkinson v. Austin, 545
U.S. 209, 221 – 22 (2005) (“[T]he Constitution itself does not give rise to a liberty interest
in avoiding transfer to more adverse conditions of confinement”); Hewitt v. Helms, 459
U.S. 460, 468 (1983) (“[T]he transfer of an inmate to less amendable and more restrictive
quarters for nonpunitive reasons is well within the terms of confinement ordinarily
contemplated by a prison sentence” (concerning administrative segregation)); Meachum v.
Fano, 427 U.S. 215, 225 (1976) (no liberty interest arising from Due Process Clause itself
in transfer from low– to maximum–security prison because “[c]onfinement in any of the
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State’s institutions is within the normal limits or range of custody which the conviction has
authorized the State to impose”).
Additionally, Plaintiff’s bald allegation of “hard labor” fails to describe any tasks
that could fairly be characterized as an atypical and significant hardship. Serra v. Lappin,
600 F.3d 1191, 1196 (9th Cir. 2010) (“[P]risoners do not have a legal entitlement to
payment for their work.”); Northrop v. Fed. Bureau of Prisons, No. 1:08-cv-00746, 2008
WL 5047792, at *8 (M.D. Pa. Nov. 24, 2008) (collecting cases indicating that prisoners
may be required to work and that there is no constitutional right to payment for services).
Plaintiff simply has not asserted “enough facts to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570.
C.

Retaliation
Plaintiff evidently attempts to assert a retaliation claim when he alleges the

Department transferred him to the Maine State Prison because he “sought as to why he was
being held, since he served his time.” (Complaint ¶ 12.) As explained above, the
Department is not subject to suit in federal court on Plaintiff’s § 1983 claims because the
Department is not a person subject to § 1983, and the Eleventh Amendment bars Plaintiff
from proceeding on the claim against the Department in federal court. Will, 491 U.S. at
64; Poirier, 558 F.3d at 97 n. 6; Nieves–Marquez Rico, 353 F.3d at 124.
D.

State Claims
Plaintiff’s claim against Defendant Brochu, his former attorney, is evidently a state

law claim based on Defendant’s Brochu’s alleged negligence. The Court lacks jurisdiction
over a claim based on state law because the parties, Maine residents and a state agency, are
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not diverse for purposes of federal court diversity jurisdiction. Gabriel v. Preble, 396 F.3d
10, 13 (1st Cir. 2005) (“Diversity jurisdiction exists only when there is complete diversity,
that is, when no plaintiff is a citizen of the same state as any defendant.”). Because the
citizenship of the parties is not diverse, and because there is no actionable federal claim,
dismissal of Plaintiff’s state claim is appropriate. 28 U.S.C. § 1367(c)(3).
CONCLUSION
Based on the foregoing analysis, pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C.
§ 1915A(a), I recommend the Court dismiss Plaintiff’s complaint.3
NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
Dated this 12th day of April, 2017.

/s/ John C. Nivison
U.S. Magistrate Judge

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A prisoner who mistakenly files a habeas matter as a § 1983 claim can request leave to amend to assert
the habeas claim. Cassell v. Osborn, 23 F.3d 394, 1994 WL 159424, 1994 U.S. App. LEXIS 8991, n.5 (1st
Cir. 1994) (unpublished per curiam opinion). However, when deciding whether to file a habeas petition,
Plaintiff should consider whether he has exhausted his state-provided remedies. See 28 U.S.C. §
2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that … the applicant has exhausted the
remedies available in the courts of the State ….”). Plaintiff’s claim regarding the calculation of credit for
time served under 17-A M.R.S. § 1253(2) appears to be a “post-sentencing proceeding” under Maine law,
see 15 M.R.S. § 2121(2), whereas his claim concerning the calculation of good time credits under 17-A
M.R.S. § 1253(3) appears to be an “administrative action” that requires exhaustion of the Department’s
administrative grievance process, followed by state court review under Me. R. Civ. P. 80C. Roderick v.
State, 2013 ME 34, 79 A.3d 368, 370 n.2. Additionally, federal habeas relief under 28 U.S.C. § 2254
requires a showing that the State’s custody of Plaintiff violates the United States Constitution or the laws
or treaties of the United States. A violation of state law, standing alone, would not suffice for federal habeas
relief.

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