Allende v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sharif Allende
v. 	Case No. 19-cv-1124-JL
Helen Hanks, N.H. Department of Corrections
(“DOC”) Commissioner; William Wrenn, (former)
DOC Commissioner; DOC Employee Christopher Kench;
Michelle Goings Edmark, Warden; DOC Maj. Jon Fouts;
DOC Employee Loretta Coulombe
REPORT AND RECOMMENDATION
Before the court is the complaint (Doc. No. 1) filed by
plaintiff, Sharif Allende, an inmate at the Northern New
Hampshire Correctional Facility (“NCF”), naming as defendants
New Hampshire Department of Corrections (“DOC”) officials and
staff in their individual and official capacities. 	The
complaint, asserting claims for both damages and equitable
relief, is before this magistrate judge for preliminary review
under LR 4.3(d)(1) and 28 U.S.C. § 1915A(a).
Preliminary Review Standard
The court may dismiss claims asserted in an inmate’s
complaint, if the court lacks subject matter jurisdiction, a
defendant is immune from the relief sought, the complaint fails
to state a claim, or the action is frivolous or malicious. 	See
28 U.S.C. § 1915A(b). 	In determining whether a pro se complaint
states a claim, the court must construe the complaint liberally.
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See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	To
determine whether to dismiss claims for failure to state a
claim, the court takes as true the factual content in the
complaint and inferences reasonably drawn from those facts,
strips away the legal conclusions, and considers whether
plaintiff has stated a claim that is plausible on its face.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Background
I. 	December 2017 Incident Involving Jessie Harbeck
NCF officers filed a disciplinary report against Mr.
Allende on December 30, 2017, charging him with the disciplinary
offense of assaulting Inmate Jessie Harbeck. 	The assault
resulted in “multiple facial/head injuries” to Mr. Harbeck and
swelling and cuts on Mr. Allende’s hands. 	A Berlin Emergency
Medical Services (“BEMS”) ambulance transported Mr. Harbeck to
the Androscoggin Valley Hospital (“AVH”) in Berlin, New
Hampshire, for emergency care.
The disciplinary report on the incident charged Mr. Allende
with two disciplinary violations including assaulting Mr.
Harbeck. 	Mr. Allende pleaded guilty to the disciplinary
offenses by signing the disciplinary report on January 2, 2018,
beneath a statement saying, “I desire to plead guilty to the
charges. 	I waive my right to a hearing and my right to appeal.
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I admit to the facts and circumstances described above.” 	Doc.
No. 1-1, at 8. 	The recommended sanctions to be imposed upon the
acceptance of Mr. Allende’s plea, recorded in the disciplinary
report, included “100% Restitution for any medical costs from
th[e] incident.” 	Doc. No. 1-1, at 8. 	A reviewing officer, Lt.
Berwick, accepted Mr. Allende’s plea on January 2, 2018, and the
hearings officer signed the form on the same date.
II. 	April 2018 Incident Involving Adrien Stillwell
A disciplinary report dated April 13, 2018 charged Mr.
Allende with disciplinary violations arising from a fight with
Inmate Adrien Stillwell. 	Mr. Allende alleges that officers
transported him to the hospital after the fight. 	Mr. Allende
pleaded guilty to disciplinary charges arising from that
incident on April 16, 2018, signing a statement saying that he
was waiving his right to a hearing and appeal and that he
admitted to the facts and circumstances in the disciplinary
report. 	The disciplinary report listed the recommended sentence
as including “med[ical] restitution for injuries/treatment.”
Doc. No. 1-1, at 3. 	On April 16, 2018, a reviewing officer
accepted Mr. Allende’s guilty plea to the disciplinary charges
on Major Fouts’s behalf.1 	See Doc. No. 1-1, at 3.
1Mr. Allende on April 15, 2018 signed the disciplinary
report, indicating he wanted to plead guilty to two lower-level
(“minor”) disciplinary offenses arising from the fight. 	The
report at that time listed the recommended sanctions as
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III. November 5, 2018 Restitution Notices
On November 5, 2018, Mr. Allende received two notices, each
entitled, “Order of Restitution,” stating that as a result of
his pleas of guilty to disciplinary charges on January 2, 2018
and April 16, 2018, he owed the State of New Hampshire:
• 	$3,113.10 for “Medical restitution [for] Injuries to
[Inmate] Harbeck,” for amounts paid to “AVH” and
“BEMS,” Doc. No. 1-1, at 14, relating to the January
2018 plea; and
• 	$86.79 in “medical restitution” for amounts paid to
“AVH-Surgical,” Doc. No. 1-1, at 15, relating to the
April 2018 plea.
Mr. Allende asserts that the DOC has begun to debit his inmate
trust account for those amounts.
including “medical restitution for injuries and treatment.”
Doc. No. 1-1, at 3. 	The reviewing officer rejected that plea,
however, and struck the recommended sentence from the form,
after deciding that a higher level (“major”) disciplinary
offense should be investigated or charged. 	See Doc. No. 1-1, at
3. 	Mr. Allende signed the same disciplinary report on April 16,
2018 again indicating an intent to plead guilty to the
disciplinary charges. 	See Doc. No. 1-1, at 3. 	The reviewing
officer, Lt. Berwick, accepted that plea on April 16, 2018,
beneath an amended list of recommended sanctions, once again
including “med restitution for injuries/treatment.” 	Doc. No. 1-
1, at 3. 	Mr. Allende has not alleged facts suggesting that he
did not in fact plead guilty to those charges on April 16, 2018.
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IV. 	DOC Policy and State Law
At all times relevant to this case, state law has provided
that “[n]o inmate shall be subject to deductions from moneys
credited to the inmate’s account” for repayment of the costs of
treating injuries inflicted upon himself or upon others, “until
the inmate has been afforded a due process hearing and has been
found guilty.” 	N.H. Rev. Stat. Ann. (“RSA”) § 622:31-a, V, VII.
“DOC policy allows inmates to plead guilty to disciplinary
charges at the investigation phase, before a hearing, by signing
the disciplinary report form, waiving the right to a hearing,
waiving the right to an administrative appeal, and accepting the
offered punishment.” 	Fowler v. Zenk, No. 18-cv-244-LM, 2019 DNH
041, 2019 U.S. Dist. LEXIS 38246, at *7, 2019 WL 1116215, at *3
(D.N.H. Mar. 11, 2019). 	DOC Policy and Procedure Directive
(“PPD”) 3.09(IV)(E) provides that if “restitution” is ordered as
part of an inmate’s sanction for a disciplinary offense, the
inmate’s pay will be diverted from his or her trust account to
satisfy that obligation. 	Doc. No. 1-1, at 11-12.
Claims
Mr. Allende has asserted the following claims seeking
damages and equitable relief:
1. 	Defendants violated Mr. Allende’s Fourteenth
Amendment right to procedural due process, by:
a. 	Charging him for medical services Mr. Harbeck
received following the December 2017 incident; and
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b. 	Charging him for medical services provided by AVH
Surgical after the April 2018 incident.
2. 	Defendants violated Mr. Allende’s Eighth Amendment
rights and Fourteenth Amendment substantive due process
rights by requiring him to repay the State for amounts paid
to third parties for medical services, when the State is
required to provide inmates with medical care.
3. 	Defendants are liable to Mr. Allende under the Fair
Debt Collection Practices Act and the Fair Credit Reporting
Act:
a. 	By seeking recovery on an invalidated debt;
b. 	For reporting the restitution orders to any
credit bureau or consumer reporting agency; and
c. 	By acting as a collection agency for third party
medical providers for services (i) that were not
provided to Mr. Allende, for which Mr. Harbeck may
have claims or defenses to liability that are personal
to Mr. Harbeck, (ii) as to which he did not assume any
responsibility or otherwise accept by way of an
assignment of rights or responsibilities.
4. 	Defendants violated Mr. Allende’s rights under (a) the
Fifth Amendment; (b) the Sixth Amendment; (c) the
Fourteenth Amendment Equal Protection Clause; and (d) 28
U.S.C. § 2283 (Anti-Injunction Act), 28 U.S.C § 2284
(three-judge panels), 16 C.F.R. Part 433 (Federal Trade
Commission’s “Holder Rule”), and the “Federal Rules of
Civil Procedure.”
5. 	Defendants have engaged in conduct that (a) violates
the Uniform Commercial Code, and/or (b) amounts to fraud.
Discussion
I. 	Procedural Due Process (Claims 1(a)-(b))
A. 	Protected Interests
The Fourteenth Amendment prohibits state deprivations of
life, liberty, or property without due process of law. 	U.S.
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Const. amend. XIV. 	To establish that his due process rights
have been violated, a plaintiff must demonstrate that he has
suffered a deprivation of a protected interest in liberty or
property. 	See Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
State prison inmates have a protected property interest in funds
that may become subject to restitution orders in disciplinary
proceedings. 	See Fowler, 2019 U.S. Dist. LEXIS 38246, at *12,
2019 WL 1116215, at *4; see also RSA §§ 622:31-a, VII.
Accordingly, Mr. Allende had a protected property interest in
the funds at issue here.
B. 	Waivers of Due Process Protections
The minimum due process requirements associated with prison
disciplinary hearings affecting protected interests are written
notice of the charges, the ability to call witnesses and present
documentary evidence (when doing so is consistent with
institutional safety and correctional concerns), a hearing
before an impartial decisionmaker, and a written statement as to
the evidence relied on and the reasons for the hearings
officer’s decision. 	See Surprenant v. Rivas, 424 F.3d 5, 16
(1st Cir. 2005); see also Wolff v. McDonnell, 418 U.S. 539, 564-
66 (1974); Smith v. Mass. Dep’t of Corr., 936 F.2d 1390, 1401
(1st Cir. 1991). 	In addition, due process requires that the
decision be supported by “some evidence” in the record.
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Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56
(1985).
Procedural due process protections may be waived. 	See
Boddie v. Connecticut, 401 U.S. 371, 378–79 (1971). 	In Fowler,
Judge McCafferty considered whether an NHSP inmate’s plea of
guilty to disciplinary charges of self-injury validly waived his
procedural due process rights under Wolff and Hill, where the
sanction imposed was medical restitution. 	Finding that “each of
the guilty pleas, each waiver of [the inmate’s] rights to a
hearing, and each statement of the recommended sanction of
medical restitution [wa]s unambiguous,” and that the restitution
orders in that case were supported by “some evidence,” the court
in Fowler found no due process violation effected by imposing
restitution orders after the inmate had pleaded guilty to the
disciplinary reports. 	See Fowler, 2019 U.S. Dist. LEXIS 38246,
at *12. *16, 2019 WL 1116215, at *5 (citing Hill, 472 U.S. at
455-56; Straub v. Griffith, No. 1:19-CV-11-JAR, 2019 WL 873703,
at *4, 2019 U.S. Dist. LEXIS 28047, at *9-*10 (E.D. Mo. Feb. 21,
2019)).
By the same token, here, Mr. Allende received prior notice
of the charged violations. 	Like the inmate in Fowler, Mr.
Allende received clear notice that “medical restitution” was
part of the recommended sanction to be imposed if his pleas of
guilty were accepted. 	Like the inmate in Fowler, Mr. Allende
received notice that he would waive his right to a hearing and
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an appeal by pleading guilty. 	The preprinted waivers
accompanying Mr. Allende’s signature and guilty plea on each of
the disciplinary reports at issue here are identical to those
found to be “unambiguous” and valid under the circumstances in
Fowler. 	In Mr. Allende’s case, as in Fowler, the disciplinary
reports’ contents and guilty pleas constitute “some evidence”
supporting a finding of guilt and the imposition of restitution.
Mr. Allende cries foul because he has been assessed
responsibility to repay the costs billed by third party medical
providers for services provided to another inmate. 	This court
notes, however, that the pertinent state laws authorize prison
officials to impose a medical restitution as a sanction for a
disciplinary offense that causes injuries to the inmate himself,
or to another inmate, after a hearing and a finding of guilt.
See RSA § 622:31-a, V, VII. 	Absent any pertinent allegations
distinguishing this case from Fowler, Mr. Allende’s guilty pleas
and waiver of the right to a hearing, deemed effective to waive
procedural protections in Fowler, warrant the same result here.
The recommended sentence in the January 2018 disciplinary
report that Mr. Allende accepted upon pleading guilty and
waiving a hearing included “100% Restitution for any medical
costs from this incident,” a broad, transactional term,
encompassing the costs associated with the “multiple facial/head
injuries” that, the report stated, resulted in Mr. Harbeck’s
trip to AVH by ambulance. 	Similarly, the sanction imposed after
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Mr. Allende pleading guilty to the charges that arose from the
incident involving Mr. Stillwell in April 2018, was listed as
“med[ical] restitution for injuries/treatment,” a term that was
broad enough to cover amounts paid for treatment provided by
“AVH Surgery” for injuries resulting from that incident. 	There
are no allegations suggesting that Mr. Allende was unaware at
the time he pleaded guilty to either of those disciplinary
reports that medical expenses for treatment provided to the
inmates outside of the prison would have to be paid, in the
first instance, by the prison or some other entity, as to whom
restitution could be required of Mr. Allende. 	Accordingly, Mr.
Allende’s procedural due process challenge to the validity of
the restitution orders is without merit, and Claims 1(a) and
1(b) should be dismissed.
II. 	Substantive Due Process/Eighth Amendment (Claims 2(a)-(b))
Mr. Allende argues that because the prison must provide
inmates with medical care for their serious medical needs, he
should not be held liable for the costs of providing such care
outside the prison. 	The Eighth Amendment prohibits prison
officials from depriving inmates of “the essence of human
dignity . . . . A prison that deprives prisoners of basic
sustenance, including adequate medical care, is incompatible
with the concept of human dignity and has no place in civilized
society.” 	Brown v. Plata, 563 U.S. 493, 510-11 (2011). 	Nothing
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alleged in the complaint, however, suggests that Mr. Allende was
subjected to any deprivation of human dignity or excessive risk
to his health or safety, by having to repay the cost of
treatment provided by third party medical care providers to him,
Mr. Harbeck, or Mr. Stillwell, as a result of injuries each
sustained because of his disciplinary misconduct, involving
incidents of inmate-on-inmate violence, to which he pleaded
guilty.
To state a claim that state action violates substantive due
process, a plaintiff must allege facts showing that the state
actor’s conduct “objectively ‘shocks the conscience.’” 	S.
Commons Condo. Ass’n v. Charlie Arment Trucking, Inc., 775 F.3d
82, 91 (1st Cir. 2014) (citation omitted).
“A hallmark of [a] successful [substantive due process]
challenge[] is an extreme lack of proportionality, as the
test is primarily concerned with ‘violations of personal
rights . . . so severe . . . so disproportionate to the
need presented, and . . . so inspired by malice or sadism
rather than a merely careless or unwise excess of zeal that
it amounted to a brutal and inhumane abuse of official
power literally shocking to the conscience.’”
González-Fuentes v. Molina, 607 F.3d 864, 881 (1st Cir. 2010)
(citation omitted). 	The test is context-specific: 	“[I]n
situations ‘where actual deliberation on the part of a
governmental defendant is practical, the defendant may be held
to have engaged in conscience-shocking activity’ by exercising
‘deliberate indifference.’” 	Id. (citation omitted).
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Nothing alleged in the complaint suggests that there is any
disproportionality between the amounts paid to treat injuries
caused by Mr. Allende’s misconduct and the amount of the
restitution orders, or that defendants were aware of any such
disproportionality or misapprehension of Mr. Allende regarding
what costs he would be required to repay. 	Cf. United States v.
Newell, 658 F.3d 1, 35 (1st Cir. 2011) (“restitution is
inherently proportional, insofar as the point of restitution is
to restore the victim to the status quo ante”). 	Restitution
orders requiring Mr. Allende to repay amounts the State paid to
third party health care providers for his disciplinary offenses
do not shock the conscience or otherwise violate Mr. Allende’s
rights under the circumstances. 	Therefore, Claims 2(a) and 2(b)
should be dismissed.
III. Fair Debt Collection Practices/Fair Credit Reporting Act
Mr. Allende has claimed that defendants violated the Fair
Debt Collection Practices Act (“FDCPA”) by imposing restitution
orders as sanctions in the disciplinary proceedings and by
debiting his inmate trust account for those amounts; and that
they violated the Fair Credit Report Act (“FCRA”), to the extent
they reported the restitution orders to any credit bureau or
consumer reporting agency. 	The FDCPA imposes certain
obligations on “debt collector[s]” and provides for civil
liability for the failure of a debt collector to comply with the
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statute. 	15 U.S.C. § 1692k(a). 	The term “debt collector” is
defined in the statute as not including “any officer or employee
of . . . any State to the extent that collecting or attempting
to collect any debt is in the performance of his official
duties.” 	15 U.S.C. § 1692a(6)(C). 	The FDCPA is not applicable
to the conduct alleged in the complaint. 	Furthermore, the
allegations regarding reports made to consumer reporting
agencies and/or violations of the FCRA are conclusory and
speculative. 	As none of Mr. Allende’s FDCPA and FCRA claims
have merit, the district judge should dismiss Claim 3(a)-(c) for
failure to state a claim upon which relief can be granted.
IV. 	Remaining Federal Claims (Claims 4(a)-(d))
A. 	Fifth and Sixth Amendment and Equal Protection Claims
Mr. Allende claims that defendants violated his due process
rights under the Fifth Amendment. 	That part of the Bill of
Rights concerns limits on the federal government. 	Defendants
are state employees. 	There are no allegations regarding actions
undertaken by any federal agents in this case. 	Accordingly,
Claim 4(a) should be dismissed.
Mr. Allende claims that defendants violated his Sixth
Amendment rights. 	Prison disciplinary proceedings do not
implicate Sixth Amendment rights. 	See Wolff, 418 U.S. at 568.
Accordingly, Claim 4(b) should be dismissed.
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Mr. Allende claims that defendants violated his rights
under the Fourteenth Amendment Equal Protection Clause, which
guarantees “that ‘similarly situated persons are to receive
substantially similar treatment from their government.’”
Kuperman v. Wrenn, 645 F.3d 69, 77 (1st Cir. 2011) (citation
omitted). 	To assert an equal protection claim, a plaintiff must
state facts which show that, as compared to others similarly
situated, the plaintiff was treated differently based on an
improper consideration. 	See id. at 78. 	There are no factual
allegations in the Complaint that suggest Mr. Allende has been
treated less favorably than any other inmate who is similarly
situated, based on any improper consideration. 	Accordingly,
Claim 4(c) should be dismissed.
B. 	Other Federal Authorities
The Complaint refers to 28 U.S.C. § 2283 (Anti-Injunction
Act); 28 U.S.C § 2284 (three-judge panel procedures); 16 C.F.R.
Part 433 (Federal Trade Commission rule regarding consumer
credit contracts); and, in general terms, the Federal Rules of
Civil Procedure. 	None of those authorities provides Mr. Allende
with a cause of action for any claim for damages or injunctive
relief based on the facts alleged. 	Accordingly, to the extent
Mr. Allende seeks relief upon those authorities, the district
judge should dismiss those claims, collectively identified here
as Claim 4(d), for failure to state an actionable claim.
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V. 	Uniform Commercial Code and Fraud (Claims 5(a)-(b))
Mr. Allende asserts that defendants have violated the
Uniform Commercial Code (“UCC”) and are liable for fraud. 	The
UCC governs commercial transactions; the specific provisions Mr.
Allende has cited relate to negotiable instruments and bank
transfers. 	The UCC provisions he cites are inapplicable to
prison disciplinary proceedings and to the restitution orders
issued as a sanction for disciplinary infractions pursuant to
state law. 	Furthermore, Mr. Allende’s claims of fraud are
conclusory and speculative. 	Accordingly, Claims 5(a) and (b)
should be dismissed.
VI. 	Request for Injunctive Relief
Mr. Allende has requested preliminary injunctive relief on
his claims. 	A prerequisite to obtaining such relief is a
showing of a likelihood of success on the merits. 	Glossip v.
Gross, 135 S. Ct. 2726, 2736 (2015). 	For reasons stated in this
Report and Recommendation, Mr. Allende has failed to demonstrate
any likelihood of success on the merits. 	Accordingly, his
requests for injunctive relief should be denied.
Conclusion
For the foregoing reasons the district judge should deny
Mr. Allende’s request for injunctive relief and dismiss the
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Complaint in its entirety. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	That period may be
extended upon motion. 	Failure to file objections within the
specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
___________ 	______________
Andrea K. Johnstone
United States Magistrate Judge
June 10, 2020
cc: 	Sharif Allende, pro se
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