Simpson v. Merrimack County Department of Corrections, Superintendent et al

Filing 10

///ORDER denying 3 Motion to Waive Copying Fees; denying 4 Motion to Appoint Counsel. Parties/claims dismissed and those that remain (as to Ronald R. White, Supt. MCDC and Les Dolecal, Asst. Supt. MCDC) are outlined. Amended complaint due by 4/23/14. If amended complaint is not filed, court will proceed with service of the remaining 2 claims. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Walter Simpson
v.

Civil No. 13-cv-549-JD
Opinion No. 2014 DNH 070

Superintendent, Merrimack
County Department of Corrections
O R D E R
Walter Simpson, proceeding pro se and in forma pauperis, has
filed a complaint against the Superintendent of the Merrimack
County Department of Corrections, the Assistant Superintendent,
the Chief of Operations, a “Property Officer,” and two
“Administration Workers.”

Simpson is incarcerated.

Pursuant to

28 U.S.C. § 1915(e)(2) and § 1915A, the complaint is subject to
preliminary review to determine whether it can be served on the
defendants.

Simpson has also filed motions that are addressed in

this order.

I.

Preliminary Review
On preliminary review, the court uses the same standard

under § 1915A that is applicable under Federal Rule of Civil
Procedure 12(b)(6).

Machado v. Weare Police Dep’t, 494 Fed.

Appx. 102, 105 (1st Cir. 2012); Roy v. Wrenn, 2013 WL 4541389, at
*1 (D.N.H. Aug. 27, 2013).

Under that standard, the court

“construe[s] all factual allegations in the light most favorable
to the non-moving party to determine if there exists a plausible
claim upon which relief may be granted.”

Wilson v. HSBC Mortg.

Servs., Inc., 744 F.3d 1, 7 (1st Cir. 2014).
pro se pleadings liberally.

The court construes

Estelle v. Gamble, 429 U.S. 97, 106

(1976).
Simpson lists claims arising from the decision by the
defendants at Merrimack County Department of Corrections (“MCDC”)
to move him to administrative segregation, which Simpson refers
to as “the hole,” and then to transfer him to another facility.
He contends that the move to the hole was done for no reason and
without notice or explanation.

He contends that he was

transferred to Hillsborough County Department of Corrections
(“HCDC”) because he filed requests and complaints.

In the course

of his moves, Simpson states, the defendants took his personal
belongings and his legal papers and threw them in the trash.

He

also states that the defendants “hindered and knowingly
restricted” his communications “with counsel of record.”

A.

Move to Administrative Segregation
Simpson alleges that on July 8, 2012, two guards came to his

cell and announced that he was being moved to Charlie Unit,
administrative segregation, known as “the hole.”

The guards said

that they did not know why and were just following orders.

Once

Simpson was relocated, a case manager told Simpson that he was
assigned to administrative segregation for thirty days along with
Fred Chapman.

Simpson acknowledges that he had had an

adversarial relationship with Chapman for many years, which he
describes in the complaint.
2

Simpson sent a message to his own case manager who responded
that he was in segregation “because you can’t be around someone
else.”

Simpson then wrote letters to MCDC officials explaining

his relationship with Chapman and asking if there were
alternatives to administrative segregation because he had done
nothing wrong.
Simpson’s allegations suggest that he is claiming his
confinement in administrative segregation violated his due
process rights.

Although Simpson does not allege his prisoner

status, the court will assume that he was a pretrial detainee
while he was housed at MCDC.1
Pretrial detainees are protected by the due process clause
of the Fourteenth Amendment from detainment that amounts to
punishment.

O’Connor v. Huard, 117 F.3d 12, 16 (1st Cir. 1997).

A department of corrections may not impose punitive detention on
a pretrial detainee but “may, however, impose administrative
restrictions and conditions upon a pretrial detainee that
effectuate his detention . . . and that maintain security and
order in the detention facility.”

Id. (citing Bell v. Wolfish,

441 U.S. 520, 535 & 536-7 (1979)); see also Surprenant v. Rivas,
424 F.3d 5, 13-14 (1st Cir. 2005).

Pretrial detainees may not be

subjected to punishment for violating institutional restrictions
and conditions without due process, which requires written notice
1

Simpson alleges that he was scheduled for sentencing in
December of 2014. After filing his complaint, Simpson notified
the court that he was moved to the New Hampshire State Prison for
Men in January of 2014.
3

at least twenty-four hours before a disciplinary hearing, an
impartial decision maker, and the ability to call witnesses and
present evidence at the hearing.

Surprenant, 424 F.3d at 16; see

also Goguen v. Gilblair, 2013 WL 5407225, at *29 (D. Me. Sept.
25, 2013) (noting issue of whether due process is required for
administrative segregation as well as disciplinary segregation
depends on the conditions of confinement).
Based on Simpson’s allegations, he was not afforded due
process before he was moved to administrative segregation and the
reason for the move is unclear.

Taking the facts in the light

most favorable to Simpson, the move to administrative segregation
could have been punitive.

Therefore, Simpson states a due

process violation that is actionable under 42 U.S.C. § 1983.

B.

Transfer to HCDC
On July 14, 2012, Simpson was transferred to HCDC.

Simpson

asserts that he was transferred to HCDC because he made
complaints and filed grievances about his move to administrative
segregation at MCDC.

He also alleges that on arrival at HCDC he

was told by the processing officer that his transfer paperwork
stated “No reason” for the transfer and that MCDC only sent
violent inmates and troublemakers to HCDC.
“[D]espite the deference owing to the decisions of prison
officials, retaliation against a prisoner’s exercise of
constitutional rights is actionable.”
45, 48 (1st Cir. 2011).

Hannon v. Beard, 645 F.3d

To state a claim of retaliation for
4

exercising First Amendment rights, Simpson must allege facts that
show “he engaged in a protected activity, that the state took an
adverse action against him, and that there is a causal link
between the former and the latter.”

Id.

Filing grievances in jail is protected activity.

Id. at 49.

A transfer to a more restrictive or less desirable environment
can be an adverse action.

Id.

Although the link between the

complaints and grievances Simpson filed and the transfer is not
well developed, at this stage the proximity in time will suffice.
See id.
Therefore, for purposes of preliminary review, Simpson has
sufficiently alleged a First Amendment violation, actionable
under § 1983, based on a retaliatory transfer.

C.

Loss of Property
Simpson alleges that some of his personal property was

thrown in the trash during the period when he was moved to
administrative segregation and then to HCDC and back to MCDC.
Simpson’s allegations are not clear as to what he believes was
missing.

Although he focuses on “discovery” and his “legal

papers,” he may also intend to allege that other personal
property was thrown in the trash.

1.

Due Process

A state employee does not violate the procedural
requirements of the due process clause of the Fourteenth
5

Amendment by an unauthorized negligent or intentional deprivation
of property “if a meaningful postdeprivation remedy for the loss
is available.”

Hudson v. Palmer, 468 U.S. 517, 533 (1984).

Therefore, if state law provides an adequate remedy, no due
process violation occurred.

Chongris v. Bd. of Appeals of Town

of Andover, 811 F.2d 36, 44-45 (1st Cir. 1987).

If a plaintiff

could pursue post-deprivation remedies against the defendants, an
adequate postdeprivation remedy is available.

See Latimore v.

Dep’t of Corrs., 2013 WL 6181082, at *12 (D. Mass. Nov. 22,
2013); D’Amelio v. Gerry, 2009 WL 1065921, at *4 (D.N.H. Mar. 31,
2009).
For purposes of this case, New Hampshire provides an
adequate postdeprivation remedy through state law tort claims,
such as a claim for conversion.

2.

Right to Access the Courts

Every citizen has a constitutional right to access the
courts.

Fabiano v. Hopkins, 352 F.3d 447, 453 (1st Cir. 2003).

To state an actionable claim, however, a prisoner must allege
facts that show the defendant’s actions “hindered his efforts to
pursue a legal claim.”

Lewis v. Casey, 518 U.S. 343, 351 (1996).

Simpson does not allege that he was involved in any civil
suit or action at the time of either move nor that any legal
action was adversely affected by the loss of his discovery and

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legal papers.2

Therefore, Simpson does not state a claim that

his right to access the courts was violated.

3.

State Law Claim

Simpson does not allege that the loss or destruction of his
property violated a constitutional right.

However, Simpson might

state a claim for negligence or conversion.
“An action for conversion is based on the defendant’s
exercise of dominion or control over goods which is inconsistent
with the rights of the person entitled to immediate possession.”
Rinden v. Hicks, 119 N.H. 811, 813 (1979); Riggs v. Peschong,
2009 WL 604369, at *3 (D.N.H. Mar. 5, 2009).

The party asserting

conversion bears the burden of showing his right to property and
that the defendant’s actions were unlawful.
65 F.3d 986, 991 (1st Cir. 1995).

Marcucci v. Hardy,

For a common law negligence

claim, a plaintiff must allege “the existence of a duty flowing
from the defendant to the plaintiff and that the defendant’s
breach of that duty caused the injury for which the plaintiff
seeks to recover.”

Hickingbotham v. Burke, 140 N.H. 28, 34

(1995).
Although Simpson alleges that Property Officer Overlock and
Chief of Operations Kara S. Wyman were involved in his efforts to

2

As a pretrial detainee, Simpson would have been involved in
a criminal proceeding during the time he was held at MCDC. For
that proceeding, however, Simpson would have been represented by
counsel.
7

locate his property, he does not allege who was responsible for
the loss or destruction of his property or specifically what is
missing.

Therefore, as currently alleged, there are insufficient

facts to support either claim.

As explained below, Simpson is

afforded an opportunity to amend his complaint to allege a
conversion or negligence claim with allegations as to who caused
the loss or destruction of his property and what property,
specifically, was lost or destroyed.

D.

Communications with Counsel
In his list of claims, Simpson states that the defendants

“hindered and knowingly restricted [his] communications with
counsel of record.”
claim.

However, he alleges no facts to support his

A conclusory statement without supporting facts is

insufficient to state a claim.
678 (2009).

Ashcroft v. Iqbal, 556 U.S. 662,

Therefore, Simpson does not state an actionable

claim that the defendants violated a constitutional right by
hindering or restricting his communications with counsel.

E.

Summary
Simpson lists as defendants:

Ronald R. White,

Superintendent, MCDC; Officer Overlock, “Property Officer”; Les
Dolecal, Assistant Superintendent, MCDC; Kara S. Wyman, “Director
of Operations”; and “Administration Workers” Rose and Courtney.

8

Although Administration Workers Rose and Courtney are listed
as defendants, the complaint makes no mention of either of them.
Therefore, no claim is alleged against either Rose or Courtney,
and they are dismissed.
Simpson’s allegations pertaining to Officer Overlock and
Kara S. Wyman are limited to the issues pertaining to the loss of
his property.

Because Simpson has not stated a claim for the

loss of his property, the claim against Overlock and Wyman is
dismissed.
The two claims that are allowed, listed below, will proceed
against Ronald R. White, Superintendent, MCDC, and Les Dolecal,
Assistant Superintendent.
Simpson has stated the following claims actionable under
§ 1983:
1.

The defendants violated due process by moving Simpson to

administrative segregation without adequate process.
2.

The defendants violated his First Amendment right by

transferring Simpson to HCDC in retaliation for his complaints
and grievances filed in response to his move to administrative
segregation at MCDC.

II.

Motion to Waive Copying Fees
Simpson moves to have all copying fees waived in the case.

He does not explain what copying fees he seeks to have waived or
provide any detail about a copying request.
9

Under 28 U.S.C. § 1914, the court is required to charge fees
for copying.

Section 1915 does not provide for waiver of copying

fees in civil suits.

See, e.g., Thibeault v. Brown, 2013 WL

120123, at *7 (D. Mass. Jan. 8, 2013); Woodward v. Mullah, 2010
WL 3023117, at *5 (W.D.N.Y. July 29, 2010).
Therefore, the motion is denied.

III.

Motion for Appointment of Counsel
Simpson asks the court to appoint counsel to represent him

in this action.

“[T]here is no constitutional right to appointed

counsel in a civil case . . . .”

Maroni v. Pemi-Baker Reg’l Sch.

Dist., 346 F.3d 247, 257 (1st Cir. 2003).

“The court may request

an attorney to represent any person unable to afford counsel.”
1915(e)(1).

§

However, an indigent civil litigant must show that

exceptional circumstances exist to be eligible for assistance
under § 1915(e)(1).

DesRosiers v. Moran, 949 F.2d 15, 23 (1st

Cir. 1991).
Simpson has not shown exceptional circumstances in this case
to support a request for assistance under § 1915(e)(1).
Therefore, the motion is denied.

Conclusion
For the foregoing reasons, Simpson’s claims that the
defendants threw his property in the trash and hindered his
communications with counsel are dismissed.
10

Simpson’s claims under § 1983 that the defendants violated
his due process rights by moving him to administrative
segregation and that the defendants violated his First Amendment
rights by transferring him to HCDC in retaliation for his
complaints and grievances may proceed against defendants Ronald
R. White, Superintendent, MCDC, and Les Dolecal, Assistant
Superintendent, MCDC.

All other claims and defendants are

dismissed.
Simpson’s motion to waive copying fees (document no. 3) and
motion for appointment of counsel (document no. 4) are denied.
Simpson is afforded an opportunity to amend his complaint to
add a state law conversion and/or negligence claim, with
additional allegations as to who caused the destruction or loss
of his property and what property was lost or destroyed.

The

amended complaint shall be filed on or before April 23, 2014.
an amended complaint is not filed by that date, the court will
proceed with service of the two claims allowed in this order.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
April 10, 2014
cc:

Walter Simpson, pro se

11

If