Peterson v. Masse et al

Filing 66

///ORDER denying 65 Motion for Reconsideration re 62 Order on Motion for Summary Judgment. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Warren E. Peterson
v.

Civil No. 14-cv-432-LM
Opinion No. 2017 DNH 088

William Wrenn, Commissioner,
New Hampshire Department of Corrections;
Richard Gerry; Christopher Kench;
Lester Eldridge; Roger Provost;
Kelly Jardine; Paul Cascio;
Michael Marden; Jon Fouts;
Brian Baxter; John Masse; and
Charles Boyijian

O R D E R
Before the court is plaintiff Warren E. Peterson’s motion
(doc. no. 65), seeking partial reconsideration of the January
30, 2017, Order (doc. no. 62) (“January 30 Order”), granting in
part and denying in part defendants’ motion for summary judgment
(doc. no. 41), and denying plaintiff’s motion for summary
judgment (doc. no. 49).

Peterson seeks reconsideration of the

part of the January 30 Order that granted judgment as a matter
of law for defendants on Peterson’s First and Fourteenth
Amendment retaliation and access to the courts claims.1

1Peterson’s

First and Fourteenth Amendment retaliation and
access to the courts claims were identified as Claims II and III
in the January 30 Order.

Standard
A party moving for reconsideration of an order must
“demonstrate that the order was based on a manifest error of
fact or law.”

LR 7.2(d).

“‘[M]otions for reconsideration are

appropriate only in a limited number of circumstances: if the
moving party presents newly discovered evidence, if there has
been an intervening change in the law, or if the movant can
demonstrate that the original decision was based on a manifest
error of law or was clearly unjust.’”

Dionne v. Fed. Nat.

Mortg. Ass’n, 110 F. Supp. 3d 338, 341 (D.N.H. 2015) (citation
omitted).

“[A] party cannot use a motion for reconsideration

‘to undo its own procedural failures’ or to ‘[advance] arguments
that could and should have been presented’ earlier.”

R&R

Auction Co., LLC v. Johnson, No. 15-cv-199-PB, 2016 DNH 195,
2016 WL 2992115, at *1, 2016 U.S. Dist. LEXIS 67273, at *2
(D.N.H. May 23, 2016) (citation omitted).

A “motion for

reconsideration is not ‘a mechanism to regurgitate old arguments
previously considered and rejected.’”

Id. (citation omitted).

Discussion
I.

Right of Access to the Courts (Claim II)
In the January 30 Order, this court concluded that Peterson

had not articulated any grounds upon which any factfinder could
find, without undue speculation, that defendants Masse and

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Boyijian had actually hindered Peterson’s ability to litigate a
non-frivolous post-conviction claim in state court.
Specifically, in the January 30 Order, the court found that
Peterson had pointed to only one specific pertinent document,
his presentence investigation report (“PSI”), along with other
parts of his case files, that defendants Masse and Boyijian
caused him to lose access to, and which he said he needed to
litigate additional claims in his motion for post-conviction
relief in the state courts.

This court ruled, as follows:

Peterson counters that if he had in fact retained
access to the lost materials including the PSI, he
would have litigated different claims, and he would
have filed a more complete motion sooner. Peterson
does not state what those unasserted claims would have
been, in a manner that would allow this court to
conclude whether such claims were non-frivolous.
“[T]he underlying cause of action, whether anticipated
or lost, is an element that must be described in the
complaint, just as much as allegations must describe
the official acts frustrating the litigation.”
Christopher v. Harbury, 536 U.S. 403, 415 (2002).
January 30 Order, at 23.
In the instant motion to reconsider (doc. no. 65), Peterson
asserts that there are several ways “defendants” caused him to
suffer actual legal injury in the state courts:


by telling Peterson he could not keep legal work in his
cell unless he had a docket number, which caused Peterson
to rush to file a “one issue” post-conviction motion in
the state courts in April 2013, and to forego completing
a multi-issue draft of the same motion;



by causing Peterson’s personal copy of the PSI to be lost
when some of Peterson’s case files were destroyed, before
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Peterson could finish briefing a claim in state court
that the PSI’s description of the offense did not match
the indictment, and that the PSI’s facts did not support
the decision to treat his kidnapping conviction as a
Class A felony; and


by causing Peterson’s multi-issue draft of the motion for
post-conviction relief to be misplaced or destroyed
before Peterson finished briefing and filing two claims –
(1) that state law prohibited the imposition of a minimum
sentence greater than three years and (2) that the
indictment’s description of the kidnapping incident was
exaggerated and did not match the PSI’s description of
the crime, and that the PSI’s description of the crime
did not support the decision to treat the kidnapping
conviction as a Class A felony.

Before filing the motion to reconsider, Peterson never
clearly articulated which claims he could not brief as a result
of defendants’ actions, and which pertinent documents, other
than the PSI, had been destroyed.

A motion to reconsider an

order granting summary judgment is not the place for a plaintiff
asserting an access to the courts claim to describe the specific
claims inhibited, which he could have but did not previously
articulate in connection with the underlying summary judgment
motion.

See R&R Auction Co., 2016 WL 2992115, at *1, 2016 U.S.

Dist. LEXIS 67273, at *2.

Reconsideration is properly denied

with respect to arguments and factual assertions that Peterson
chose not to raise previously in connection with the underlying
cross motions for summary judgment.
Peterson attempts to make much of having been rushed into
filing a “one issue” post-conviction brief in April 2013.

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No

competent evidence in the record, however, suggests reasonable
grounds for finding that defendants Masse and Boyijian’s acts,
and not Peterson’s own strategic decision, caused Peterson to
forego filing a longer, multi-issue brief in state court
challenging his conviction or sentence in 2013.

Nothing before

the court indicates defendants prevented Peterson from
litigating the same issues in the state courts either before the
events at issue occurred, or after Peterson reconstructed the
arguments he alleges he could not file in 2013.
The record shows that the state court denied Peterson’s
“one issue” post-conviction motion and ensuing motions to
reconsider, upon finding, among other things, that Peterson had
waived the double jeopardy claims he raised in those filings, by
having failed to raise them in his direct appeal or in postconviction proceedings litigated in the years prior to 2013.

By

the same token, both the PSI/indictment issue and 3-year minimum
sentence claim, like those double jeopardy claims, are based on
facts that Peterson knew or should have known at the time of his
direct appeal and earlier post-conviction litigation.

Nothing

before this court suggests that the state court, upon finding
the double jeopardy claims to be procedurally barred, would not
have treated the PSI/indictment issue and 3-year minimum
sentence claim as subject to the same procedural bar.
Furthermore, as Peterson admitted the substance of the
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indictment’s charge when he pleaded guilty, and nothing in the
record suggests that his guilty plea was invalid, Peterson’s
claim, challenging his Class A felony conviction and sentence
based on discrepancies between the PSI and the indictment, is
frivolous.
Peterson has also failed to show how defendants actually
hindered his ability to litigate a non-frivolous claim
challenging the 5-year minimum sentences imposed upon him.

That

claim depends entirely on Peterson’s (frivolous) legal argument
as to whether the state court had discretion under state law to
impose a 5-year to 20-year sentence on Peterson, where the
statute at issue provided for a twenty-year maximum sentence and
a minimum sentence of “not less than 3 years’ imprisonment.”2

2At

the time of Peterson’s conviction and sentencing, the
pertinent enhanced sentence statute provided as follows:
If a person is convicted of a felony, an element of
which is the possession, use or attempted use of a
deadly weapon, and the deadly weapon is a firearm,
such person may be sentenced to a maximum term of 20
years’ imprisonment in lieu of any other sentence
prescribed for the crime. The person shall be given a
minimum mandatory sentence of not less than 3 years’
imprisonment for a first offense . . . .”).
N.H. Rev. Stat. Ann. (“RSA”) § 651:2, II-g (1998). Five years
is less than one half of twenty years, which is the upward limit
of the sentence minimum that may be imposed. See State v.
Peabody, 121 N.H. 1075, 1078, 438 A.2d 305, 308 (1981) (“a
minimum felony sentence can be no greater than one-half the
maximum” (citing RSA § 651:2, II(d))).
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Even if this court were to assume that the claim at issue
is not frivolous, the record is devoid of evidence generating a
jury question on whether defendants hindered Peterson’s ability
to litigate that issue.

To the extent Peterson argues that the

loss of an earlier, more complete draft of his post-conviction
motion made it difficult for him to file the claim in state
court in 2013, there is no competent evidence in the record that
Peterson could not file the claim sooner, prior to the events at
issue in this case, which began in February 2013.

And there is

no evidence that Peterson was unable to obtain an extension of
time or other relief, as necessary, from the state court to add
this claim at a later stage of the same proceeding he initiated
in April 2013.

Accordingly, the motion to reconsider the

disposition of Claim II in the January 30 Order is denied.
II.

Retaliation (Claim III)
This court granted defendants’ motion for summary judgment

on Peterson’s First Amendment retaliation claim (Claim III),
upon finding that defendants were entitled to qualified
immunity.

Peterson moves to reconsider that ruling.

Reconsideration is denied, as Peterson has not shown that the
court’s qualified immunity analysis is infected by any manifest
error of fact or law.

See Dionne, 110 F. Supp. 3d at 341.

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Accordingly, the motion to reconsider the disposition of Claim
III in the January 30 Order is denied.
Conclusion
For the foregoing reasons, the court denies the motion to
reconsider (doc. no. 65).
SO ORDERED.
__________________________
Landya B. McCafferty
United States District Judge
May 4, 2017
cc:

Warren E. Peterson, pro se
Kenneth A. Sansone, Esq.
Elizabeth Mulholland, Esq.
Nancy J. Smith, Esq.

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