Larkin v. Strafford County Department of Corrections, Superintendent et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Michael L. Larkin
v. 	Case No. 19-cv-102-LM
Strafford County Department
of Corrections Superintendent
Christopher Brackett et al.1
REPORT AND RECOMMENDATION
Plaintiff, Michael L. Larkin, has filed in this case:
• 	a motion (Doc. No. 21) to supplement the complaint,
seeking to add a new claim of interference with
Larkin’s mail and claim relating to the recreational
library;
• 	a motion (Doc. No. 22) to amend the complaint, seeking
to add new allegations to resurrect two claims that
were asserted in his initial pleadings, previously
numbered by the court as Claims 2(b) and 5, which the
court had dismissed for failure to state a claim, see
1Defendants who have been served in this action are
Strafford County Department of Corrections (“SCDOC”)
Superintendent Christopher Brackett and Strafford County. 	For
reasons stated in this Report and Recommendation, the court has
issued an Order this date directing service of a summons upon
new defendants SCDOC Assistant Superintendent Capt. Jake Collins
and SCDOC Captain of Security Robert Hayden. 	The remaining
defendants named in Larkin’s initial pleadings have been dropped
from this action.
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Sept. 25, 2019 Order (Doc. No. 40) (approving June 10,
2019 Report and Recommendation (“June 10 R&R”) (Doc.
No. 19)); and
• 	a proposed supplemental/amended complaint (Doc. No.
28), asserting a claim, numbered below as “Claim 10,”
alleging that defendants, including Strafford County
Department of Corrections (“SCDOC”) Officer Daniels,
violated Larkin’s First Amendment rights by denying
him access to books that were in the SCDOC
recreational library.
Those filings are before the court for preliminary review
pursuant to 28 U.S.C. § 1915A and LR 4.3(d)(1). 	In conducting
its preliminary review of Larkin’s amended and supplemental
pleadings, the court uses the standard set forth in the June 10
R&R, see Doc. No. 19, at 2-3.
Background
I. 	Larkin’s Status
At all times relevant to this action, Larkin has been
incarcerated at the SCDOC. 	Between 2018, and ending sometime in
August 2019, Larkin was a federal inmate at the SCDOC in
connection with a criminal case pending in the District of
Maine. 	Since August 16, 2019, Larkin has been held at the SCDOC
as a pretrial detainee, pursuant to orders issued in connection
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with an extradition proceeding, arising out of a fugitive-from-
justice warrant and detainer issued by Massachusetts, see State
v. Larkin, No. 432-2019-cr-01936, (N.H. Cir. Ct., 7th Cir.-Dist.
Div.-Dover); State v. Larkin, No. 219-2019-cv-00516 (N.H. Super.
Ct., Strafford Cty.).
II. 	Claims That Have Been Served
The court conducted its preliminary review of Larkin’s
initial pleadings (Doc. Nos. 1, 12, 13, 14) and allowed Claims
1, 2(a), and 3, as identified in the June 10 R&R (see Doc. No.
19), to be served in this action. 	The claims that the court
dismissed in approving the June 10 R&R included Claims 2(b) and
5. 	See Sept. 25, 2019 Order (Doc. No. 40) (approving June 10
R&R (Doc. No. 19)).
Discussion
I. 	New Allegations Relating to Claim 2(b)
Document No. 22 alleges additional facts relating to Claim
2(b), which this court previously summarized as follows:
2. 	The SCDOC policy that prohibits Larkin and other
inmates from receiving personal letters or photos through
the mail:
. . .
b. 	Violates Larkin’s Fourteenth Amendment right to
equal protection, in that the restriction on the
receipt of personal mail does not apply to Immigration
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and Customs Enforcement (“ICE”) detainees held at the
SCDOC.
This court dismissed Claim 2(b) when it completed its
preliminary review of Larkin’s initial pleadings as it did not
appear from the facts alleged that ICE detainees and Larkin were
similarly situated in all relevant respects.
In determining whether two groups are similarly situated,
we have identified the somewhat imprecise test as “whether
a prudent person, looking objectively . . . would think
them roughly equivalent.” 	Put differently, “the proponent
of the equal protection violation must show that the
parties with whom he seeks to be compared have engaged in
the same activity vis-à-vis the government entity without
such distinguishing or mitigating circumstances as would
render the comparison inutile.”
Bruns v. Mayhew, 750 F.3d 61, 65-66 (1st Cir. 2014).
Larkin has pleaded additional facts in Document No. 22
that, taken as true, indicate that ICE detainees and other
inmates are comingled in the facility, and that ICE detainees
include many inmates with a history of drug crime convictions.
The fact remains, however, that Larkin and ICE detainees are not
similarly-situated with respect to their relationship with the
SCDOC in one relevant respect: ICE detainees are housed at the
SCDOC pursuant to an agreement with ICE, while Larkin is not.
Strafford County’s agreement with ICE imposes requirements that
apply only to ICE detainees, which Strafford County agreed to
implement in order to secure the benefit of its bargain with
ICE. 	Larkin, like many other SCDOC inmates, is not housed at
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the SCDOC pursuant to the terms of that agreement. 	There is a
rational basis for distributing mail to ICE detainees in a
manner that would implement the requirements of the SCDOC’s ICE
contract, while saving those mail processing or delivery
resources with respect to other inmates whose conditions of
confinement are not governed by that contract.
Larkin argues that since the distinction between him and
ICE detainees turns on their alienage and his citizenship, the
difference in how the SCDOC handles ICE mail versus other inmate
mail must be subjected to strict scrutiny. 	Cf. Bruns, 750 F.3d
at 66 (“the otherwise ‘valid interest [of states] in preserving
the fiscal integrity of [state] programs’ is generally
insufficient grounds for a state-imposed burden on alienage to
survive an equal protection challenge” (citation omitted)). 	The
problem with Larkin’s argument, however, is his failure to
allege facts to state a claim that the mail of non-citizen SCDOC
inmates who aren’t ICE detainees is handled like the mail of ICE
detainees and unlike Larkin’s. 	In the absence of that
allegation, and lacking a suggestion in the pleadings that the
SCDOC otherwise uses an inmate’s federal or state grounds for
detention or incarceration as markers of alienage or
citizenship, Larkin has failed to allege facts to state a claim
that similarly-situated inmates are treated differently in a
manner that violates the Equal Protection Clause of the
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Fourteenth Amendment. 	Accordingly, the district judge should
deny as futile Larkin’s motion to add Claim 2(b) to this action,
and Claim 2(b) should remain dismissed from this case.
II. 	New Allegations Relating to Claim 5
New allegations in Document Nos. 21 and 22 relate to Claim
5, as numbered in the June 10 R&R, which the court previously
summarized as follows:
5. 	The conduct of SCDOC officers in inspecting one or
more flash drives sent to Larkin as legal mail from his
criminal attorney violated Larkin’s right to counsel under
the Sixth Amendment, as such inspections occurred outside
of Larkin’s presence, without his consent, and
unjustifiably interfered with confidential communications
between Larkin and his criminal defense counsel.
The court dismissed Claim 5 following its preliminary
review of Larkin’s initial pleadings, as Larkin had not pleaded
facts regarding the manner and frequency of the inspection of
his flash drives that would state a claim of a violation of his
Sixth Amendment rights. 	Document Nos. 21 and 22 add new
allegations relating to those issues, regarding the existence of
an established policy or practice implemented by SCDOC officers,
including Capt. Jake Collins. 	Pursuant to that policy, Capt.
Collins has twice opened flash-drives from Larkin’s attorney,
outside of Larkin’s presence. 	Larkin alleges that the
implementation of that established policy and practice chilled
his ability to communicate freely by mail with his attorney.
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The court concludes that Larkin’s allegations relating to
Claim 5 presently survive preliminary review. 	The district
judge, therefore, should grant the motions docketed as Document
Nos. 21 and 22 to the extent that they seek to assert new
allegations in support of Claim 5, to join new defendant SCDOC
Capt. Jake Collins, and to require defendants to file their
answer or other response to that claim. 	In the Order issued
this date, the court has directed defendants including new
defendant Capt. Jake Collins to respond to Claim 5 and the
pertinent allegations in Document Nos. 21 and 22.
III. New Allegations in Document Nos. 21 and 28
A. 	List of New Claims
In Document Nos. 21 and/or 28, Larkin alleges new facts and
seeks to add new claims to this action. 	The court summarizes
those new allegations and numbers those new claims seeking
relief including damages and/or injunctive relief, as Claims 8,
9, 10, and 11:
8. 	The conduct of SCDOC officers in inspecting the
contents of “court mail” sent to Larkin outside of Larkin’s
presence:
a. 	Violated SCDOC policies;
b. 	Violated Larkin’s right to confidentiality in
correspondence from the courts; and
c. 	Violated Larkin’s rights as the inspection of
court mail was undertaken in retaliation for Larkin’s
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exercise of his First Amendment rights to petition the
government for redress of grievances and to send and
receive correspondence while incarcerated.
9. 	The SCDOC practice of retaining an electronic copy on
the photocopier hard-drive of the originals of court mail,
legal mail, and other types of mail considered by SCDOC
policies to be “privileged mail,” has violated Larkin’s
federal rights.
10. 	SCDOC officers, including SCDOC Officer Daniels, have
violated Larkin’s First Amendment rights by denying Larkin
access to books that had been previously made available to
inmates as part of the facility’s recreational library.
11. 	SCDOC officers are liable to Larkin, with respect to
matters alleged in relation to Claim 10, for:
a. 	Treating Larkin differently than other inmates in
facilities operated by the New Hampshire Department of
Corrections and other county correctional departments;
b. 	Engaging in criminal conduct;
c. 	Conspiring to deprive Larkin of his civil rights
and privileges, in violation of 42 U.S.C. §§ 1983,
1985(3);
d. 	Intentionally and/or negligently inflicting
emotional distress upon Larkin; and
e. 	Violating the Code of Federal Regulations,
unspecified state laws, the New Hampshire
Constitution, state administrative regulations, and
“Department of Corrections” rules and policies.
B. 	Claim 8
The premise of Claim 8 and its subparts as alleged in
Document No. 21 and summarized herein is that Larkin has a right
to enforce SCDOC regulations through section 1983 and a general
right to prevent defendants from opening and inspecting incoming
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mail form the courts outside of his presence. 	In general,
however, inmates may not base a claim arising under section 1983
on prison officials’ failure to comply with prison policies, see
McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012) (“[a]n
assertion that prison officials failed to follow prison rules or
policies does not set forth a constitutional claim”), and
litigants have no right to privacy in the contents of public
rulings issued by, and non-confidential correspondence from, the
courts, see Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987)
(“with minute and irrelevant exceptions all correspondence from
a court to a litigant is a public document, which prison
personnel could if they want inspect in the court’s files”).
Nothing that this court has sent to Larkin has been sealed or
removed from the public docket, and Larkin has alleged no facts
suggesting that any other court mail at issue has been sealed
and is not otherwise part of the public record.
Furthermore, an inmate alleging a claim of retaliation for
engaging in conduct protected by the First Amendment must point
to the existence of some adverse act taken in response to his
exercise of such rights, which could deter an inmate of ordinary
firmness from engaging in First Amendment activities. 	See Starr
v. Dube, 334 F. App’x 341, 342 (1st Cir. 2009). 	An inmate of
ordinary firmness would not be deterred from filing a court case
or sending and receiving court mail by the prospect that prison
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officials would review the contents of non-confidential mail
sent by the court to the inmate, as such correspondence is a
matter of public record. 	Accordingly, Larkin’s allegations
concerning the SCDOC’s opening of letters from courts addressed
to Larkin do not state a First Amendment retaliation claim upon
which relief can be granted. 	Accordingly, the district judge
should deny, in part, Larkin’s motion to amend (Doc. No. 21), as
futile, to the extent he seeks to add Claim 8 and its subparts
to this action.
C. 	Claim 9
In Claim 9, Larkin asserts that defendants have violated
his federal rights by retaining a copy of letters that the SCDOC
has defined as “privileged mail” on the hard-drive of an SCDOC
photocopier, in conjunction with a mail processing procedure
that directs officers to photocopy such correspondence before
providing a photocopy to the inmate, and then shredding the
original, in lieu of delivering the original to the inmate.
1. 	Court Mail
In general, court mail is a matter of public record and its
inspection and retention does not violate an inmate’s federal
rights. 	See Martin, 830 F.2d at 78. 	Larkin has not
demonstrated that the retention of a copy of his court mail has
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caused him any actual injury in violation of his right of access
to the courts, cf. Lewis v. Casey, 518 U.S. 343, 351 (1996), or
that it has otherwise violated any of his federal rights, Anctil
v. Fitzpatrick, No. 1:16-CV-00107-JAW, 2018 WL 6579153, at *13,
2018 U.S. Dist. LEXIS 210121, at *35 (D. Me. Dec. 13, 2018)
(inmate’s receipt of “mail from the courts that was previously
opened, or was read to him by a member of staff, does not
establish a constitutional violation”), R&R adopted, No. 1:16-
CV-00107-JAW, 2019 WL 501467, 2019 U.S. Dist. LEXIS 20558 (D.
Me. Feb. 8, 2019).
2. 	Attorney Correspondence
Courts have afforded greater protection to incoming mail
from attorneys than to other types of incoming mail, because
such mail may impact “‘prisoner’s legal rights, the attorney-
client privilege, or the right of access to the courts.’”
Donovan v. Magnusson, No. Civ. 04-102-B-W, 2005 WL 757585, at
*10 n.17, 2005 U.S. Dist. LEXIS 9756, at *36 n.17 (D. Me. Mar.
11, 2005) (quoting Sallier v. Brooks, 343 F.3d 868, 874 (6th
Cir. 2003)). 	The Sixth Amendment does not prevent prison
officials from inspecting legal mail to the extent necessary to
preserve institutional security, but it does require that the
officials do so while “preserving the inmates’ expectation of
attorney-client confidentiality, such as by opening attorney
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communications in the presence of the inmate so that the inmate
can be sure the inspection does not include reading the
communication.” 	Hudson v. O’Brien, No. CIV.A. 09-10276-RWS,
2010 WL 2900529, at *2, 2010 U.S. Dist. LEXIS 73683, at *7 (D.
Mass. July 21, 2010). 	An inmate must demonstrate that prison
officials “‘regularly and unjustifiably interfered with the
incoming legal mail.’” 	Davis v. Goord, 320 F.3d 346, 351 (2d
Cir. 2003) (citation omitted). 	“Negligent interference with
legal mail is not actionable under section 1983.” 	Murphy v.
Grenier, 406 F. App’x 972, 976 (6th Cir. 2011); Conway v.
Jackson, No. 5:10CV00225 JLH-BD, 2010 WL 3547226, at *2, 2010
U.S. Dist. LEXIS 93100, at *4 (E.D. Ark. Aug. 16, 2010)
(isolated incident of jail official opening inmate’s legal mail
outside of inmate’s presence does not give rise to liability
“without evidence of improper motive” or injury resulting), R&R
adopted, 2010 WL 3547225, 2010 U.S. Dist. LEXIS 93010 (E.D. Ark.
Sept. 7, 2010).
As to any confidential correspondence from his criminal
attorney that has remained in the photocopier’s hard-drive,
Larkin has not alleged facts suggesting that the electronic
copies at issue have been or were regularly and improperly
opened and read outside of his presence. 	Larkin has not
otherwise pleaded any facts suggesting that his communications
with his counsel in his criminal case have been affected by the
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documents on the photocopier’s hard-drive. 	Accordingly, Claim
9, to that extent, fails to state a claim upon which relief can
be granted, and the motion to add that claim should be denied to
that extent as futile.
3. 	Other “Privileged Correspondence”
Larkin has not pleaded any facts regarding the nature of
any other “privileged” letters that have been retained on the
SCDOC photocopier, or defendants’ access to such hard-drive
data, which would suggest that defendants have violated any of
his federal rights relating to such correspondence. 	Without
more, Larkin’s allegations regarding the data retained in the
photocopier’s hard-drive do not state any claim upon which
relief can be granted under section 1983. 	Accordingly, the
district judge should deny Document No. 21, in part, as futile,
to the extent that motion seeks to add Claim 9 to this case.
D. 	Claim 10
Document Nos. 21 and 28 add new allegations to this case in
support of a claim that defendants have violated Larkin’s
rights: by closing the SCDOC’s recreational library and
disposing of thousands of books, and by denying Larkin access to
any recreational reading material that was previously made
available to him. 	Larkin alleges specific facts regarding SCDOC
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Officer Daniels’s conduct in denying Larkin access to such
books, and the supervisory defendants’ failure to address
Larkin’s complaints regarding that conduct. 	Larkin asserts that
the elimination of the recreational library and the incomplete
or ineffective transition to e-books through tablets distributed
to SCDOC inmates has violated and continues to violate his
rights under the First Amendment.
Although the court is troubled by the allegation that the
SCDOC has converted library space into a store for vending junk
food and soda, the U.S. Constitution does not guarantee inmates
access to a library of novels or other favorite reading
materials in the format an inmate prefers. 	The removal of books
from a prison’s library can raise First Amendment concerns,
however, when books that inmates previously could obtain are no
longer available to them in any form. 	See Cline v. Fox, 319 F.
Supp. 2d 685, 690-91 (N.D.W. Va. 2004) (“a prison’s selective
removal of library books restricts an inmate’s right to receive
information”). 	This court notes, in that regard, that Claim 10
is properly analyzed with due deference to prison officials’
professional judgment regarding matters relating to prison
security, and with reference to the Turner factors, cf. Overton
v. Bazzetta, 539 U.S. 126, 132 (2003); Turner v. Safley, 482
U.S. 78, 89-91 (1987). 	At this stage of the case, however,
Larkin’s allegations about the complete closure of the
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recreational library and the incomplete and/or ineffective
transition to e-books raise questions about whether defendants’
denial of Larkin’s access to books that were previously
available to him is an exaggerated response to the facility’s
legitimate penological interests. 	Accordingly, in the Order
issued this date, the court has directed defendants including
SCDOC Officer Daniels to file an answer or other response to
Document Nos. 21 and 28 with respect to Claim 10 (above).
E. 	Claim 11
Claim 11 summarizes the remaining legal theories cited by
Larkin in Document No. 28, see Doc. No. 28, at 9-12, which do
not give rise to any claims that survive preliminary review.
Claim 11(a) fails to state a claim upon which relief can be
granted as defendants are not responsible for the conditions
that may be present in facilities the SCDOC does not operate.
Claim 11(b) does not state an actionable claim as a “private
citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another,” Linda R. S. v.
Richard D., 410 U.S. 614, 619 (1973). 	Claim 11(c) fails to
state a claim upon which relief can be granted, as the civil
rights conspiracy claim is conclusory, and Larkin has not
alleged that he has suffered any racial or other invidious,
class-based discrimination. 	See Boyle v. Barnstable Police
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Dep’t, 818 F. Supp. 2d 284, 318 (D. Mass. 2011) (to state a
claim under section 1985(3), “a plaintiff must assert (a) racial
or class-based discrimination; and (b) interference with a
federally protected right,” and plaintiff’s conspiracy claim
must have factual support).
Claim 11(d) also does not state an actionable claim as
plaintiff has failed to allege any non-conclusory facts
regarding the severity or impact of any emotional distress he
has suffered. 	See Tessier v. Rockefeller, 162 N.H. 324, 342, 33
A.3d 1118, 1132 (2011); Morancy v. Morancy, 134 N.H. 493, 496,
593 A.2d 1158, 1160 (1991). 	And Claim 11(e), encapsulating
Larkin’s nonspecific references to the Code of Federal
Regulations, the state constitution, the revised and annotated
compilation of state statutes, the state’s body of
administrative rules, and unspecified state or county
correctional regulations and policies, without more, is a legal
conclusion that fails to show that plaintiff has any private
right of action or actionable claim for the relief he seeks,
arising from those authorities.
Conclusion
For the foregoing reasons, the magistrate judge recommends
as follows:
1. 	The district judge should deny the motions
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docketed as Document Nos. 21 and 22 in all respects, except
to the extent that: Capt. Jake Collins and SCDOC Officer
Daniels are joined as defendants to this action; and Claims
5 and 10 (set forth above) are allowed to proceed in this
action, pursuant to the Order issued simultaneously with
this Report and Recommendation.
2. 	The district judge should specifically deny as
futile Larkin’s motions to amend/supplement and the
(proposed) amended or supplemented complaint (Doc. Nos. 21,
22, 28), to the extent that, through those filings,
plaintiff seeks to revive or add Claims 2(b), 8, 9, and 11
to this case, or join any new defendants other than Capt.
Collins and Officer Daniels.
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
January 24, 2020
cc: 	Michael L. Larkin, pro se
Christine Friedman, Esq.
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