Griffin v. Manchester, NH Parole Office et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John R. Griffin, Jr.
v. 	Civil No. 16-cv-438-JL
Jennifer Walters, Irena Catovic,
Kevin Valenti, Mark Hastbacka,
and Kent Smith1
REPORT AND RECOMMENDATION ON DOC. NOS. 29 and 42
Before the court is a motion to dismiss (Doc. No. 29) filed
by defendants New Hampshire Department of Corrections (“DOC”)
Parole Officers Jennifer Walters, Irena Catovic, and Kevin
Valenti (“State Defendants”). 	Griffin has objected. 	See Doc.
No. 42. 	The motion to dismiss (Doc. Nos. 29) has been referred
to the undersigned magistrate judge for a Report and
Recommendation (“R&R”) as to disposition. 	See LR 72.1.
Additionally, as Griffin included a “Motion to Strike
Defendants’ Claim of Threat” as part of his objection (Doc. No.
42), Griffin’s request to strike is also addressed in this R&R.
1Defendants in this case other than those listed in the
caption of this Order have been dropped from this action. 	See
Apr. 4, 2017 Order (Doc. No. 47); Feb. 24, 2017 Order (Doc. No.
32).
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Background2
In March 2016, Griffin was paroled from a state prison
sentence. 	While on parole in May 2016, Griffin mailed a letter
(“May 2016 Letter”), addressed to Attorney Nicole Thorspecken, a
prosecutor at the Hillsborough County Attorney’s Office,
regarding a state habeas proceeding he was litigating. 	Attorney
Thorspecken’s supervisor considered the May 2016 Letter to be
threatening,3 and referred the letter to the FBI for
investigation.
Griffin had been living at “Helping Hands” while on parole,
until he was evicted on May 10, 2016, rendering him homeless.4
2The following summary of pertinent background facts is
derived from the Complaint (Doc. No. 1); the January 25, 2017
R&R (Doc. No. 19), approved by the February 24, 2017 Order (Doc.
No. 32); and, where indicated, from documents filed by Griffin
in a related case, Griffin v. Nadeau, No. 17-cv-209-LM (D.N.H.,
filed May 30, 2017).
3The May 2016 Letter includes statements about armed
citizens rising up against tyranny, and urges Attorney
Thorspecken to “[c]onsider the following ‘Skill Set’ I could
employ at will,” including the “[a]bility to di[s]appear,
escape, evade capture,” “to quickly process explosives from
readily available household cleaners, other materials, Example:
Magnetite (i.e. Black Sand), aluminum filings + a strip of
magnesium in a coke can = thermite grenade – Burns +3,000˚ can
melt thru armor,” and the “[a]bility to place 7-8 115-230 grain
projectiles from a three inch barrel into 8 inch reactive target
at 7-15 feet – consistently and quickly.” 	Doc. No. 13-1, at 6-
8.
4Helping Hands Outreach Center manages two residential
shelters in Manchester, New Hampshire. 	Helping Hands Outreach
Ministries, Inc., http://helpinghandsmanchesternh.com/ (last
accessed Aug. 11, 2017).
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DOC parole officers, unaware of the eviction, unsuccessfully
attempted to find Griffin at Helping Hands on May 19, 2016.
Griffin’s Parole Officer Jennifer Walters swore out an affidavit
on May 27, 2016, seeking a warrant for Griffin’s arrest for two
parole violations: failing to obtain the parole officer’s
permission before changing residence, and failing to be of good
conduct by sending an “aggressive and threatening letter” to
Attorney Thorspecken. 	N.H. Adult Parole Bd. (“APB”) Aff. &
Warrant, Griffin v. Nadeau, No. 17-cv-209-LM (D.N.H., filed May
30, 2017) (ECF No. 1, at 11). 	Parole officers arrested Griffin
on June 1, 2016. 	See id.
Griffin appeared personally and through appointed counsel
at a June 21, 2016 parole revocation hearing. 	The APB revoked
Griffin’s parole, finding that he had not properly notified his
parole officer about moving out of Helping Hands, see N.H.
Admin. R. Par 401.20(b)(3) (“Parole Rule 3”), and that he had
failed to be “of good behavior,” id. 401.02(b)(7) (“Parole Rule
7”). 	The APB deemed the May 2016 Letter to be “new criminal
conduct/behavior,” in violation of Parole Rule 7. 	See APB,
Results of Parole H’g, June 21, 2016, Nadeau, No. 17-cv-209-LM
(ECF No. 1, at 12-13). 	In its decision revoking Griffin’s
parole, the APB specifically noted that Griffin had sent a
letter to Attorney Thorspecken, including “comments and writings
[that] were threatening in nature and bad conduct for a
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parolee.” 	Id. (ECF No. 1, at 13).
Griffin filed this action to challenge, as retaliatory and
invalid, his parole revocation, and the investigations and
arrest relating to the May 2016 Letter. 	This court conducted a
preliminary review of Griffin’s complaint and allowed a First
Amendment retaliation claim to proceed in this action against
state and federal agents, under 42 U.S.C. § 1983 and Bivens v.
Six Unknown Fed. Narc. Agents, 403 U.S. 388 (1971), as follows:
Assistant Hillsborough County Attorney Kent Smith; DOC
Parole Officers Jennifer Walters, Irena Catovic, and Kevin
Valenti; and FBI Agent Mark Hastbacka initiated
investigations, an arrest, and/or parole revocation
proceedings against Griffin, in retaliation for Griffin’s
writing and mailing the May 2016 Letter, which was conduct
protected by the First Amendment.
See Aug. 7, 2017 R&R (Doc. No. 67, at 3) (citing Jan. 25, 2017
R&R (Doc. No. 19) (“January 25 R&R”), approved by Feb. 24, 2017
Order (Doc. No. 32) (“February 24 Order”)).
Discussion
I. 	Motion to Strike (Doc. No. 42)
This court’s local rules allow a party to move to strike
material offered in support of, or in opposition to, any motion
served on that party, within fourteen days of service. 	See LR
7.2(b). 	Rule 12(f) of the Federal Rules of Civil Procedure
authorizes the court to strike from a “pleading” any
“insufficient defense or any redundant, immaterial, impertinent,
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or scandalous matter.” 	A motion to dismiss is not a “pleading,”
for purposes of a Rule 12(f) motion. 	Cf. Fed. R. Civ. P. 7(a)
(listing pleadings). 	Furthermore, the State Defendants’
arguments regarding the First Amendment are pertinent and
material to Griffin’s claims. 	Their arguments regarding the
First Amendment and the May 2016 Letter do not comprise an
insufficient defense, and are not colored with any words or
other matters that could properly be stricken from the motion to
dismiss. 	Accordingly, Griffin’s request in Document No. 42,
asking the court to strike the “threat” defense, should be
denied.
II. 	Motion to Dismiss (Doc. No. 29)
A. 	Standard
The State Defendants’ motion to dismiss (Doc. No. 29) is
filed pursuant to Fed. R. Civ. P. 12(b)(6). 	In ruling on a
motion to dismiss under Rule 12(b)(6), the court must consider
whether the factual content in the complaint, taken as true, and
inferences reasonably drawn therefrom, state a claim to relief.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 	In doing
so, the court disregards the legal conclusions in the complaint.
Hernandez-Cuevas, 723 F.3d at 102-03. 	The scope of the court’s
review is generally limited to “‘facts and documents that are
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part of or incorporated into the complaint,’” as well as
“‘documents incorporated by reference . . . , matters of public
record, and other matters susceptible to judicial notice.’”
Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008) (citations
omitted). 	As plaintiff is proceeding pro se in this action, the
court construes his pleadings liberally. 	See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
B. 	Heck Rule
Although the issue is not raised in the parties’ briefs on
the motion to dismiss,5 this court appropriately may inquire at
this time whether the Heck doctrine precludes further
consideration of the merits of plaintiff’s First Amendment
retaliation claims, thereby warranting dismissal of those
claims. 	See generally Heck v. Humphrey, 512 U.S. 477 (1994);
see also, e.g., White v. Gittens, 121 F.3d 803, 806 (1st Cir.
1997) (characterizing Heck as jurisdictional and raising it as
grounds for affirming dismissal although neither party briefed
it). 	The Heck rule requires courts to dismiss § 1983 claims if
a favorable judgment would necessarily imply the invalidity of
that prisoner’s conviction or sentence, unless it has been
5The Heck rule is raised in defendant Kent Smith’s motion
for summary judgment (Doc. No. 63), which is not yet ripe for a
ruling.
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previously reversed, expunged, or otherwise declared invalid.
Heck, 512 U.S. at 487. 	This court has previously decided that
the rule in Heck requires this court to dismiss Griffin’s § 1983
claims if a favorable judgment would necessarily imply the
invalidity of the decision to revoke Griffin’s parole. 	See
February 24 Order, approving January 25 R&R (citing White, 121
F.3d at 807, and Farland v. Wall, 91 F. Supp. 3d 74, 78 (D.
Mass. 2015)).
Plaintiff has alleged that the May 2016 Letter provided the
impetus for the State Defendants’ alleged retaliatory arrest and
for the parole revocation proceedings. 	Records of that arrest,
filed by Griffin in Griffin v. Nadeau, No. 17-cv-209-LM (D.N.H.)
(ECF No. 1, at 11), confirm that Parole Officer Walters based a
warrant application, relating to the June 1, 2016 arrest, in
part, upon threats directed at Attorney Thorspecken in the May
2016 Letter. 	Records of the APB’s decision, similarly filed by
Griffin in the related case, see Nadeau, No. 17-cv-209-LM (ECF
No. 1, at 12-13), also demonstrate that consideration of the
“threatening” nature of the May 2016 Letter was the basis for
the APB’s finding that Griffin violated Parole Rule 7. 	In other
words, the APB determined that the May 2016 Letter contained
threats directed at Attorney Thorspecken, manifesting criminal
conduct or bad behavior for a parolee, when it revoked Griffin’s
parole based on that finding.
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In claiming that the arrest and prosecution of Griffin for
the parole violation were retaliatory, Griffin argues that the
May 2016 Letter was protected by the First Amendment. 	This
proceeding is not the proper place for this court to decide such
issues, as the parole revocation has not been previously
invalidated.6 	A favorable decision on Griffin’s claim regarding
the validity of the arrest and prosecution of Griffin’s parole
violations, in light of the First Amendment, would necessarily
impugn the validity of the APB’s revocation of Griffin’s parole,
to the extent it was based on Griffin’s May 2016 Letter and
violation of Parole Rule 7. 	The Heck rule, applied in this
case, requires dismissal of all of the First Amendment claims
Griffin has asserted against the State Defendants. 	See Garcia-
Melendez v. Gonzalez, No. CV 14-1560 (SEC), 2017 WL 1067756, at
*2, 2017 U.S. Dist. LEXIS 40632, at *6 (D.P.R. Mar. 21, 2017)
(Heck bars false arrest claim, as favorable verdict would
require jury to find agent lacked probable cause to detain her,
which in turn would imply that detention was illegal and her
conviction invalid); Cabot v. Lewis, No. CV 13-11903-FDS, 2017
WL 1013742, at *9-*10, 2017 U.S. Dist. LEXIS 37086, at *23-*24
(D. Mass. Mar. 15, 2017) 	(Heck bars plaintiff from challenging
6A petition for a writ of habeas corpus challenging the
validity of the parole revocation as well as the underlying
state conviction, is presently pending in this court. 	See
Griffin v. Warden, No. 16-cv-382-JD (D.N.H.).
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whether there was probable cause for arrest, as to do so, he
would have to negate element of offense for which he received
pretrial probation); Hutchins v. Maine State Hous., No. 1:14-CV-
00491-JAW, 2015 WL 2250672, at *4, 2015 U.S. Dist. LEXIS 50428,
at *11-*12 (D. Me. Apr. 16, 2015) (“civil claim alleging that
revocation proceedings or the imposition of special conditions
were the result of or were wrongly decided because of false
testimony is . . . subject to the Heck bar” (citing cases)), R&R
approved by No. 1:14-cv-00491-JAW, 2015 WL 2250672, at *1, 2015
U.S. Dist. LEXIS 62492 (D. Me. May 13, 2015); Neblett v. Concord
Fed. Prob., No. 13-CV-515-NT, 2014 WL 808848, at *3-*4, 2014
U.S. Dist. LEXIS 26949, at *6-*13 (D.N.H. Jan. 8, 2014)
(applying Heck to selective prosecution claim, which challenged,
as discriminatory, probation violation charge that resulted in
imposition of special condition requiring probationer to reside
in halfway house), R&R approved, No. 13-CV-515-NT, 2014 WL
808848, at *1, 2014 U.S. Dist. LEXIS 25960 (D.N.H. Feb. 28,
2014). 	Accordingly, the district judge should grant the State
Defendants’ motion to dismiss (Doc. No. 29).
Conclusion
For the foregoing reasons, the district judge should grant
the State Defendants’ motion to dismiss (Doc. No. 29) and deny
Griffin’s motion to strike, set forth in Document No. 42. 	Any
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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). 	The fourteen-day period may be extended upon
motion. 	Failure to file specific written objections to the
Report and Recommendation 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); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 11, 2017
cc: 	John R. Griffin, Jr., pro se
Francis Charles Fredericks, Esq.
John A. Curran, Esq.
Robert J. Rabuck, Esq.
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