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 Smith
REPORT AND RECOMMENDATION
Before the court is plaintiff John R. Griffin, Jr.’s
“Motion to Consider NH RSA 651-A:19 Effect of Recommittal in
Respect to Parole Board’s Intent and Actions” (Doc. No. 45).
Griffin’s motion asks this court to find that the New Hampshire
Adult Parole Board (“APB”) decision of June 21, 2016,
recommitting Griffin to the New Hampshire State Prison for an
extended term, was inconsistent with New Hampshire Rev. Stat.
Ann. (“RSA”) § 651-A:19, and was an “emotional-based” act taken
in retaliation for Griffin’s letter-writing, conduct he alleges
was protected under the First Amendment. Doc. No. 45, at 3.
Defendants have not responded to this motion.
This court construes plaintiff’s motion (Doc. No. 45)
liberally as a motion to amend the complaint to join the APB and
its members as new defendants and to add a claim that the June
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21, 2016 decision to recommit Griffin for an extended term was
an adverse act, outside the appropriate legal authority of the
APB, which was taken in retaliation for Griffin’s exercise of
his First Amendment rights. The standard applied in considering
this motion is set forth in the August 7, 2017 Report and
Recommendation (“R&R”) (Doc. No. 67), at 3-5, which the district
judge approved in its August 30, 2017 Order (Doc. No. 77).
Discussion
I. Heck Rule
This court previously ruled in this case that the Heck
rule, derived from Heck v. Humphrey, 512 U.S. 477 (1994), barred
Griffin’s due process challenge to the June 21, 2016 revocation
of his parole. See Feb. 24, 2017 Order (Doc. No. 32) (approving
Jan. 25, 2017 Report and Recommendation (“R&R”) (Doc. No. 19)).
This court has also ruled in this case that Griffin’s First
Amendment retaliation claims, challenging his arrest and
prosecution for a parole violation, were barred by Heck. See
Oct. 13, 2017 Order (Doc. No. 84) (approving Aug. 11, 2017 R&R
(Doc. No. 72)). The same reasoning applies with respect to
Griffin’s current proposed complaint amendment, asserting that
the APB’s June 21, 2016 decision to recommit Griffin to an
extended term was a retaliatory act that violated Griffin’s
First Amendment rights.
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As the June 21 decision to recommit Griffin to an extended
term has not been invalidated, and a favorable decision on that
claim would necessarily impugn the validity of the APB’s
decision to re-incarcerate Griffin for an extended term, the
Heck rule precludes Griffin from litigating that claim in this
action. See White v. Gittens, 121 F.3d 803, 807 (1st Cir. 1997)
(section 1983 claim challenging validity of parole revocation
under Due Process Clause was barred by Heck as “any award of
damages or declaratory relief would seriously call into question
the as yet undisturbed validity of the state parole board’s
action”). The motion (Doc. No. 45) to amend the complaint to
add a First Amendment retaliation claim relating to the APB’s
decision, to recommit Griffin for an extended term, should thus
be denied as futile.
II. Immunity Issues
To the extent Griffin seeks to proceed on claims against
the APB, such claims are barred by the Eleventh Amendment. See
Town of Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir.
2015); New Hampshire v. Ramsey, 366 F.3d 1, 14 (1st Cir. 2004).
Individual parole board members are shielded by absolute
immunity from liability for damages for their decision to
recommit Griffin to an extend term of incarceration. See
Johnson v. R.I. Parole Bd. Members, 815 F.2d 5, 6 (1st Cir.
1987) (per curiam); Griffin v. Nadeau, No. 17-cv-209-LM, 2017
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U.S. Dist. LEXIS 154990, at *4-*6, 2017 WL 4457510, at *2-*3
(D.N.H. Sept. 21, 2017) (ECF No. 8), R&R approved, No. 17-cv-
209-LM, 2017 U.S. Dist. LEXIS 164332, 2017 WL 4443451 (D.N.H.
Oct. 3, 2017) (ECF No. 10). Accordingly, neither the APB nor
any of its members is properly joined as a defendant here, and
the motion to join them (Doc. No. 45) should be denied as
futile.
Conclusion
For the foregoing reasons, the district judge should deny
Griffin’s “Motion to Consider NH RSA 651-A:19 Effect of
Recommittal in Respect to Parole Board’s Intent and Actions”
(Doc. No. 45). 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). The fourteen day 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
November 7, 2017
cc: John R. Griffin, Jr., pro se
Elizabeth A. Lahey, Esq.
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Francis Charles Fredericks, Esq.
John A. Curran, Esq.
Robert J. Rabuck, Esq.
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