Stow v. Sloper et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Weston J. Stow
v. 	Case No. 18-cv-1108-LM
Stephen Sloper and
James Decker
REPORT AND RECOMMENDATION
Seeking declaratory relief and damages, plaintiff Weston J.
Stow has filed a complaint (Doc. No. 1) pursuant to 42 U.S.C. §
1983, seeking relief for alleged violations of his Fourteenth
Amendment due process rights and for defendants’ alleged
tortious conduct. 	The complaint is before the court for
preliminary review, pursuant to 28 U.S.C. § 1915A(a) and LR
4.3(d)(1).
Background
Between December 2017 and April 2018, Stow, a New Hampshire
Department of Corrections (“DOC”) inmate, requested that two New
Hampshire State Police (“State Police”) Detectives, Stephen
Sloper and James Decker, investigate certain actions of three
New Hampshire State Prison (“NHSP”) employees, to determine
whether probable cause existed to charge those NHSP employees
with criminal conduct. 	Dets. Sloper and Decker, who served as
Case 1:18-cv-01108-LM Document 4 Filed 01/03/20 Page 1 of 6

2
the State Police liaisons to the DOC, refused to conduct the
investigations and/or make the probable cause determinations.
Additionally, Stow alleges that Det. Decker, in an April 4, 2018
letter to Stow, see Doc. No. 1-6, at 17, falsely claimed to be
“expressly forbidden by policy to initiate any investigation
into a Department of Corrections employee,” Doc. No. 1, at 2.
Stow states that the DOC Inmate Handbook, and a document
entitled “Memorandum of Understanding Between the New Hampshire
State Police and the New Hampshire Department of Corrections”
(“MOU”), see Doc. No. 1-6, at 26, acknowledge and/or require,
and do not forbid, such investigations by State Police/DOC
liaison officers.
Stow asserts that Dets. Sloper’s and Decker’s failure to
conduct the investigation he requested violated his Fourteenth
Amendment right not to be deprived of a liberty interest without
due process of law. 	Stow states that he has a state-created
liberty interest in the requested investigations pursuant to:
the DOC Inmate Handbook; the MOU; and the detectives’ oath of
office. 	Stow further alleges that the detectives’ conduct
constitutes the torts of intentional misrepresentation of facts,
negligence per se, and intentional inference with contractual
relations.
Case 1:18-cv-01108-LM Document 4 Filed 01/03/20 Page 2 of 6

3
Discussion
I. 	Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed in forma pauperis. 	See LR 4.3(d)(1). 	The
court may dismiss some or all of the claims in prisoner
complaints if, among other things, the court lacks jurisdiction,
a defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. 	See 28
U.S.C. §§ 1915(e)(2), 1915A(b)(1); LR 4.3(d)(1)(A). 	In
conducting its preliminary review, the court construes pro se
complaints liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). 	The complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief.’”
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted).
II. 	Failure to Conduct Criminal Investigations
Stow asserts that the defendants violated his rights under
federal and state law by failing, upon Stow’s request, to
investigate and make probable cause determinations regarding the
allegedly criminal conduct of three DOC employees, conduct Stow
claims adversely affected him. 	There is no cause of action
under 42 U.S.C. § 1983 for the failure to investigate a crime,
as there is no federal constitutional right to have criminal
Case 1:18-cv-01108-LM Document 4 Filed 01/03/20 Page 3 of 6

4
wrongdoers investigated or brought to justice. 	See Linda R. S.
v. Richard D., 410 U.S. 614, 619 (1973) (“a private citizen
lacks a judicially cognizable interest in the prosecution or
nonprosecution of another”). 	Accordingly, Stow’s assertion,
that his federal constitutional rights were violated by the
defendants’ alleged failure to investigate allegations of
criminal conduct by DOC employees, fails to state a claim upon
which relief might be granted.
II. 	Liberty Interest
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 life, liberty, or
property. 	See Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
Stow asserts that the State of New Hampshire, in the DOC Inmate
Handbook, the MOU, and the defendants’ oath of office, provided
Stow with a liberty interest in having investigated, upon his
request, allegations of criminal conduct by DOC employees. 	In
general, “[a]n assertion that prison officials failed to follow
prison rules or policies does not set forth a constitutional
claim.” 	McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir.
2012); see Querido v. Wall, C.A. No. 10–098 ML, 2010 U.S. Dist.
LEXIS 139201, at *14, 2010 WL 5558915, at *3 (D.R.I. Dec. 8,
2010), R&R adopted, 2011 U.S. Dist. LEXIS 1882, 2011 WL 63503
Case 1:18-cv-01108-LM Document 4 Filed 01/03/20 Page 4 of 6

5
(D.R.I. Jan. 7, 2011). 	Neither the detectives’ conduct nor the
alleged violations of the sources Stow cites have imposed any
“‘atypical and significant hardship on [him] in relation to the
ordinary incidents of prison life.’” 	Wilkinson v. Austin, 545
U.S. 209, 223 (2005) (quoting Sandin v. Conner, 515 U.S. 472,
484 (1995)). 	Those alleged sources of authority thus do not
provide Stow with a liberty interest protected under the Due
Process Clause. 	Accordingly, Stow has not stated a Fourteenth
Amendment due process claim upon which relief can be granted.
III. State Law Claims
Stow asserts claims for relief under state tort law. 	The
district judge should dismiss those claims without prejudice,
upon declining to exercise supplemental jurisdiction over them,
pursuant to 28 U.S.C. § 1367(c)(3) (court may decline to
exercise jurisdiction if it has dismissed all claims over which
it has original jurisdiction).
Conclusion
For the foregoing reasons, the district judge should
dismiss this action 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). 	The
fourteen-day period may be extended upon motion. 	Failure to
Case 1:18-cv-01108-LM Document 4 Filed 01/03/20 Page 5 of 6

6
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
January 3, 2020
cc: 	Weston J. Stow, pro se
Case 1:18-cv-01108-LM Document 4 Filed 01/03/20 Page 6 of 6