Czekalski v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason A. Czekalski
v. 	Case No. 18-cv-592-PB
Helen Hanks, New Hampshire Department
of Corrections Commissioner; and James
Daly, New Hampshire State Prison Chaplain
REPORT AND RECOMMENDATION
Before the court is New Hampshire State Prison (“NHSP”)
inmate Jason Czekalski’s “Motion for Expedited/Emergency
Protective Order for Evidence and/or Legal Resources” (Doc. No.
72) (“Prelim. Inj. Mot.”). 	That motion has been referred to the
undersigned magistrate judge for a hearing, as necessary, and
issuance of a Report and Recommendation, to the extent plaintiff
seeks a preliminary injunction. 	See Dec. 17, 2019 Order. 	The
matter has been fully briefed. 	See Doc. Nos. 72, 75. 	A status
conference relating to the motion was held on December 19, 2019,
at which Mr. Czekalski appeared pro se and defendants appeared
through counsel. 	An evidentiary hearing is unnecessary.
Background
Mr. Czekalski filed this case pro se, asserting in the
complaint that defendants, New Hampshire Department of
Corrections (“DOC”) Commissioner Helen Hanks and NHSP Chaplain
James Daly, acting in their individual and official capacities,
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violated his rights under the First Amendment Free Exercise
Clause, the First Amendment Establishment Clause, and the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”),
by taking actions and implementing policies that interfere with
his practice of Judaism and that favor other faiths. 	Mr.
Czekalski’s RLUIPA claims include Claim 3, which asserts that
DOC rules on the size and number of books an inmate may maintain
in his cell, and the lack of secure book storage in the Chapel
library, have impeded his access to some books he may use, or
want to use, in his faith practices.
DOC Policy and Procedure Directive (“PPD”) 9.02, in
pertinent part, states that inmates in the general prison
population in the NHSP and other DOC facilities may keep up to
eleven books or magazines in their cells, along with an
electronic tablet. 	See Doc. No. 75-2, at 17; Doc. No. 75-3.
The maximum size of each book an inmate may possess is 9” x 12”,
while 15” x 17” is the maximum size of each allowable magazine.
See Doc. No. 75-2, at 6; Doc. No. 75-4. 	An inmate who has
accumulated books or magazines exceeding those limits may send
the excess or over-sized items to a designated individual
outside the facility, or the inmate may donate them to the
prison or chapel library. 	See Doc. No. 75-2, at 3; Decl. of
Maj. Jon H. Fouts, Jan. 8, 2020 (“Fouts Decl.”) ¶ 5 (Doc. No.
75-1, at 2). 	In addition, if books and magazines have been
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confiscated because the inmate has too many in his cell, the
inmate may exchange or discard an equal number of books or
magazines he has kept to recover those that were confiscated.
See Fouts Decl. ¶ 18 (Doc. No. 75-1, at 5).
The limits on books, magazines, and other cell property in
PPD 9.02 are designed to manage the material inmates maintain in
their cells. 	See Fouts Decl. ¶ 6 (Doc. No. 75-1, at 2). 	An
interest in reducing the “fire load” of combustibles; in keeping
cells accessible in the event of an emergency; and in reducing
the places an inmate can hide drugs, weapons, and other
contraband are the facility’s justifications for those
restrictions. 	See id. ¶¶ 6-17 (Doc. No. 75-1, at 2-5).
On December 11, 2019, NHSP corrections officers searched
Mr. Czekalski’s cell, inventoried, and removed books and
magazines that they deemed to be in excess of the limits
prescribed by PPD 9.02. 	Fouts Decl. ¶ 18 (Doc. No. 75-1, at 5).
NHSP Maj. Jon Fouts personally directed that the books and
magazines taken from Mr. Czekalski be marked and stored in the
facility’s property room. 	Id. 	At the status conference held in
this case on December 19, 2019, counsel for defendants
represented that he had taken steps to ensure that the items
taken from Mr. Czekalski’s cell would be preserved.
On December 12, 2019, one day after the cell search at
issue, Mr. Czekalski signed the instant preliminary injunction
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motion and placed it in the mail for filing in this case. 	See
Prelim. Inj. Mot. (Doc. No. 72, at 3). 	In that motion, Mr.
Czekalski has described the publications taken from his cell as
including four or five books from the NHSP Chapel library that
he has used “as part of Chapel-based Jewish study or [as]
evidence/resources in this action”; three of his own books he
has similarly used “for Jewish studies and/or as evidence/
resources”; and approximately fifty “Jewish-oriented magazines,”
which he planned to use in this case “to show the nature and
scope of Judaism and Jewish Studies, as well as what it means to
be ‘Jewish.’” 	Prelim. Inj. Mot. ¶¶ 4(a)-(c), at 1-2. 	Mr.
Czekalski, who plans to dispose of the “vast bulk of the
magazines upon the completion of this action,” further asserted
in his motion that he had ordered five more books from a Jewish
book publisher, to use “as evidence/resources” in this case,
which a property officer has told him he might not receive. 	Id.
¶¶ 7-8, 10, at 2-3. 	In his motion, Mr. Czekalski seeks an order
directing defendants: to return all of the books and magazines
taken from him on December 11, 2019; to allow him to receive the
five books he had ordered from a Jewish publisher but not yet
received; and to cease and desist from harassing him while this
case is pending. 	Id. at 3.
At the December 19, 2019 status conference relating to the
preliminary injunction motion, Mr. Czekalski stated on the
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record that he had not submitted an Inmate Request Slip (“IRS”)
requesting that prison officials make arrangements to allow him
access to any of the books and magazines that were taken from
him on December 11, 2019. 	As of January 8, 2020, Mr. Czekalski
had not notified any NHSP officer as to whether he wanted any of
the books and magazines that were confiscated to be: donated or
sent back to the Chapel library; exchanged for an equal number
of books or magazines kept in his cell; mailed to, or picked up
by, any particular person outside the facility; or simply
discarded. 	Fouts Decl. ¶ 18 (Doc. No. 75-1, at 5).
Discussion
I. 	Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” 	Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (citation omitted). 	The likelihood
of success and irreparable harm are the factors that weigh most
heavily in the analysis. 	See Esso Std. Oil Co. v. Monroig–
Zayas, 445 F.3d 13, 18 (1st Cir. 2006); see also Voice of the
Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32
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(1st Cir. 2011). 	The burden of proof is on the movant. 	See
Esso Std. Oil Co., 445 F.3d at 18.
II. 	Irreparable Harm
A party seeking an injunction must show that irreparable
harm is likely to result absent a preliminary injunction.
Glossip, 135 S. Ct. at 2736. 	“[T]o be entitled to a forward-
looking remedy, a plaintiff must satisfy the basic requisites of
equitable relief -- the likelihood of substantial and immediate
irreparable injury, and the inadequacy of remedies at law.”
Joyce v. Town of Dennis, 720 F.3d 12, 26 (1st Cir. 2013)
(citations and internal quotation marks omitted). 	“A finding of
irreparable harm must be grounded on something more than
conjecture, surmise, or a party’s unsubstantiated fears of what
the future may have in store.” 	Charlesbank Equity Fund II, Ltd.
P’ship v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004).
Plaintiff asserts that he accumulated all of the magazines
and books that were taken from his cell over the course of “the
last three-and-one-half years in preparation for this case,” and
that the seizure and loss of day-to-day access to those items is
“prejudicially hinder[ing]” him “in preparing his case any
further.” 	Prelim. Inj. Mot. ¶¶ 6, 9, 10, at 2-3. 	He has
further alleged that he plans to dispose of most of the
magazines that were taken from his cell after this case is over.
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In other words, the harm he asserts appears to relate to his
litigation capacity in this case at this time, and not to his
religious practices, per se.
On the record before the court, such harm appears
speculative. 	Plaintiff has not asked prison officials for
permission to exchange the materials presently in his cell for
any specific similarly-sized items he needs that are in storage.
Plaintiff did not attempt to use the prison’s grievance process
to obtain access to any of the books and magazines at issue, and
he has not demonstrated that the available administrative
procedures cannot provide him with adequate relief.
Furthermore, while plaintiff is proceeding pro se, he is
not litigating this action without assistance; he has disclosed
Rabbi Robin Nafshi as an expert witness whom he plans to call to
testify regarding the scope of Jewish religious practices,
including matters for which he asserts he would use the contents
of the confiscated publications to demonstrate. 	Mr. Czekalski
has not shown that the admission of those publications would not
be cumulative of Rabbi Nafshi’s testimony. 	Nor has he
demonstrated that he cannot follow the procedures in PPD 9.02 to
designate Rabbi Nafshi or another individual outside the prison
to hold such items for him until he needs to present them in
this case. 	And plaintiff has neither argued, nor demonstrated,
that any impediment to his access to religious materials
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presented by the out-of-cell storage of those books and
magazines presents any irreparable injury to his religious
practices, particularly where he may be able to recover access
to the books and magazines without a court order by exchanging
those texts for similar items that he has retained in his cell
or by donating them to the chapel library.1
Finally, Mr. Czekalski’s concern for the fate of the five
books he has ordered is entirely speculative; as is his
assertion that he may suffer harassment while this case is
pending. 	Nothing before this court suggests that the officer
who told Mr. Czekalski he will not receive the five books he
ordered is in the chain of command of prison officials
responsible for screening or delivering books ordered directly
from a publisher, and even if that officer’s prediction about
those books were credited as true, plaintiff has not
demonstrated that he cannot obtain adequate relief relating to
the delivery of those books through the grievance process. 	In
addition, defendants have offered Maj. Fouts’s sworn statement
regarding the legitimate safety and security purposes of the
search of inmate cells for excess property and the reasons why
excess or over-sized books may be confiscated; nothing suggests
1Mr. Czekalski asserts that Jewish books have disappeared
from the library in the past. 	The record before this court
suggests, however, that steps have been taken to secure those
books. 	See Decl. of James P. Daly ¶¶ 17-18 (Doc. No. 79-5, at
5).
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that Mr. Czekalski is suffering any ongoing harassment relating
to those search or otherwise, which might warrant court
intervention. 	The present record thus does not support a
finding that plaintiff will suffer any irreparable harm in this
case, in the absence of the court-ordered relief he seeks.
III. Likelihood of Success
The claims upon which Mr. Czekalski is basing his request
for a preliminary injunction concern the confiscation of books
and magazines that occurred after he filed this action, and his
fears that five new books he has ordered he might not be
delivered, and/or that he may be subjected to harassment while
this case is pending. 	Mr. Czekalski has not previously sought
leave to add allegations relating to those matters to this case
through any motion to amend or supplement the complaint.
Insofar as such matters have not yet been made part of the
pleadings here, Mr. Czekalski has not demonstrated a likelihood
of success on the merits of the claims arising from those
incidents at this time.
Furthermore, Mr. Czekalski filed the instant motion for a
preliminary injunction one day after the December 11 cell
search, and before he received any notice suggesting that the
facility had in fact received the five books he ordered. 	The
Prison Litigation Reform Act (“PLRA”) generally requires inmates
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to exhaust their available administrative grievance remedies
before filing new claims, see 42 U.S.C. § 1997e; Jones v. Bock,
549 U.S. 199, 211 (2007). 	Mr. Czekalski thus faces a formidable
PLRA exhaustion defense to any new claim he may seek to
litigate, arising from such incidents that occurred or may yet
occur after he filed this action. 	Coupled with his failure to
demonstrate irreparable harm, those facts warrant an order
denying his motion for a preliminary injunction.
Conclusion
For the foregoing reasons, the district judge should deny
plaintiff’s “Motion for Expedited/Emergency Protective Order for
Evidence and/or Legal Resources” (Doc. No. 72). 	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
March 2, 2020
cc: 	Jason A. Czekalski, pro se
Lawrence M. Edelman, Esq.
Anthony Galdieri, Esq.
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