Baran et al v. NH Department of Corrections et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Paul Baran
v. 	Case No. 22-cv-044-SM-AJ
New Hampshire Department of Corrections et al.1
REPORT AND RECOMMENDATION
Before the court is self-represented Plaintiff Paul Baran’s First Amended
Complaint (Doc. No. 13), Second Amended Complaint (Doc. No. 27), and the factual
assertions in Mr. Baran’s filings docketed as Document Nos. 36-38 and 41, which the
court construes as Complaint Addenda.2 Mr. Baran is a prisoner incarcerated at the
New Hampshire State Prison for Men (“NHSP”) in Concord, New Hampshire. Mr. Baran
brings claims under 42 U.S.C. § 1983, asserting that New Hampshire Department of
Corrections (“DOC”) officials have violated his rights under the United States
Constitution and state law by misusing and misappropriating money from the DOC’s
Inmate Recreation Fund (“Recreation Fund”).3 Because Mr. Baran is incarcerated, the
1 Plaintiff identifies the following defendants to this action: New Hampshire
Department of Corrections (“DOC”); Helen Hanks, in her official capacity, as (former)
DOC Commissioner; Helen Hanks, in her individual capacity, as (former) DOC Resident
Recreation Account Trustee; (former) New Hampshire Governor John Sununu; and the
New Hampshire Fiscal Committee Head.
2 The court considers Document Nos. 13, 27, 36-38, and 41, together, as the
operative complaint in this matter for all purposes.
3 This fund is also known as the “Resident Recreation Fund”, “Recreation Fund”
and the “Prisoner’s Fund.” See, NH RSA 622:7-a and NH Department of Corrections
Policy and Procedure Directive 951 effective 5/20/2020.
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Complaint is before this magistrate judge for preliminary review under 28 U.S.C. §
1915A(a) and LR 4.3 (d)(1).
Preliminary Review Standard
The court conducts preliminary review of prisoner complaints under 28 U.S.C. §
1915A(a) and LR 4.3(d)(1) to determine, among other things, whether the complaint
states a claim upon which relief might be granted. In conducting its preliminary review,
the court must construe the complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). To determine whether to dismiss claims for failure to state a claim,
the court takes as true the factual content in the complaint and inferences reasonably
drawn from those facts, strips away legal conclusions, and then considers whether the
plaintiff has stated a claim upon which relief might be granted. See Hernandez-Cuevas
v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The court may dismiss claims asserted in a prisoner’s complaint if the court
lacks jurisdiction, a defendant is immune from the relief sought, the complaint fails to
state a claim, or the action is frivolous or malicious. See 28 U.S.C. § 1915A(b).
Background
In the Complaint documents, Mr. Baran asserts that in 2021, he discovered
information which caused him to believe that DOC officials were mishandling the
Recreation Fund. Specifically, Mr. Baran states that he uncovered recordkeeping
deficiencies, improper expenditures from the Recreation Fund, the comingling of the
Recreation Fund with the General Fund, and misuse of Recreation Fund assets dating
back to 2011.
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Mr. Baran asserts that the Recreation Fund is a “directed fund,” in that it exists
for a specific purpose and has its own accounting system. Mr. Baran states that the
money in the Recreation Fund is generated by prisoners, rather than by the state. Mr.
Baran asserts that the Recreation Fund “was set up entirely for the welfare of the
inmates’ leisure time.” Doc. No. 38, at 1. As such, he claims, it must be used for
matters related to inmate recreation, and that the DOC is using the money in the
Recreation Fund for other purposes.
Mr. Baran points to the following examples of what he characterizes as the
defendants’ misuse of the Recreation Fund:
• 	The DOC used money from the Recreation Fund to purchase mattresses for
DOC inmates when mattresses should be purchased with money from the
General Fund as the DOC is required to provide bedding to its inmates.
• 	The DOC used Recreation Fund money to purchase Chinese food for 100
people at the Northern New Hampshire Correctional Facility, which is more
food than is required to feed the 70 inmates held at that facility, and which
may have been fed to the 100 officers employed at that facility.
• 	The DOC makes cable television bill payments from the Recreation Fund
which exceed the actual cost of the DOC’s cable television subscription.
• 	The DOC used Recreation Fund money to pay for ten computers for the
Education Department instead of paying for the computers with the General
Fund and educational grants.
• 	The DOC charged the Recreation Fund bank fees, but the bank statements
for the Recreation Fund do not show that any bank fees were actually
assessed therefrom.
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Claims4
Liberally construing the Complaint, the court finds that Mr. Baran has asserted
the following claims in this matter:
1. 	The DOC and DOC Commissioner, with the explicit or implicit consent or
assistance of the New Hampshire Governor and the New Hampshire
Fiscal Committee Head, misused and/or misappropriated money from the
Recreation Fund, in violation of the following provisions of the United
States Constitution:
a. 	the Due Process Clause of the Fourteenth Amendment’s protection
against the deprivation of private property without adequate
process;
b. 	the Takings Clause of the Fifth Amendment, applicable to the State
through the Fourteenth Amendment, to the extent the state
deprived Mr. Baran of his private property, for public use, without
appropriately compensating Mr. Baran; and
c. 	the Fourth Amendment’s protection from the unreasonable and
warrantless seizure of his property.
2. 	The DOC and DOC Commissioner, with the explicit or implicit consent or
assistance of the New Hampshire Governor and the New Hampshire
Fiscal Committee Head, misused and/or misappropriated money from the
Recreation Fund, in violation of New Hampshire law, specifically:
a. 	article 12 of the New Hampshire Constitution;
b. 	State law torts of fraud, misappropriation of funds, breach of
fiduciary duty, and conversion; and
c. 	N.H. Rev. Stat. Ann. § 622:7-a.
3. 	The DOC and DOC Commissioner, with the explicit or implicit consent or
assistance of the New Hampshire Governor and the New Hampshire Fiscal
Committee Head, misused and/or misappropriated money in the Recreation
4 The claims identified in this Report and Recommendation are deemed to be the
claims asserted in this case for all purposes. If Mr. Baran disagrees with the court’s
identification or characterization of his claims, he must do so by identifying the claims he
intends to assert in this matter in an objection to this Report and Recommendation, and/
or in a motion to amend the Complaint.
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Fund, in violation of federal and state criminal laws prohibiting theft,
embezzlement, and receiving stolen property.
4. 	The DOC and DOC Commissioner, with the explicit or implicit consent or
assistance of the New Hampshire Governor and the New Hampshire Fiscal
Committee Head, misused and/or misappropriated money in the Recreation
Fund, in violation of DOC Policy and Procedure Directive 951.5
As relief for the above-listed claims, Mr. Baran seeks damages in the amount of 1/2000
of the allegedly misused/misappropriated funds, which he asserts is owed to him as one
of approximately 2000 people in DOC custody, or an order directing the defendants to
return the full amount of allegedly misused/misappropriated funds to the Recreation
Fund and to use those funds exclusively to support inmate recreation and leisure.
Discussion
I. 	Section § 1983 Claims
Mr. Baran asserts that defendants' misuse of money in the Recreation Fund
amounts to a deprivation of his property without due process, in violation of the
5 In the Complaint, Mr. Baran references PPD 3.07 (“Resident Recreation
Account”) and 7.07 (“Recreation Program Planning”). The DOC reorganized and
renumbered its PPDs in 2020. Pursuant to that reorganization, PPD 3.07 has been
superseded by PPD 951 (“Resident Recreation Account”). PPD 951’s stated purpose
is:
[t]o formulate guidelines for the proper accounting of funds pursuant to NH
RSA 622:7-[a] Prisoner’s Fund hereto after referred to as the Recreation
Fund. The Recreation Fund is held for the benefit of residents and their
families or dependent relatives with the purpose of purchasing and
implementing programs, education and other activities (e.g. recreational
supplies, equipment and new initiatives) for residents at all Department of
Corrections facilities as authorized by the Commissioner of [C]orrections
or his/her designee.
PPD 951 (May 20, 2020). PPD 7.07 has been superseded by PPD 670. The record
before the court does not include a copy of PPD 670.
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Fourteenth Amendment. He further asserts that the defendants’ actions constitute an
improper taking under the Fifth Amendment’s Takings Clause, which is applicable to the
states through the Fourteenth Amendment, and violate his Fourth Amendment right not
to have his property seized unreasonably and without a warrant.
A. 	Due Process (Claim 1(a))
The Procedural Due Process Clause of the Fourteenth Amendment “guarantees
that ‘before a significant deprivation of liberty or property takes place at the state's
hands, the affected individual must be forewarned and afforded an opportunity to be
heard “at a meaningful time and in a meaningful manner.”’” Perrier-Bilbo v. United
States, 954 F.3d 413, 433 (1st Cir. 2020) (citations omitted). Therefore, to state a
procedural due process claim upon which relief might be granted, with regard to the
DOC Commissioner’s expenditure of Recreation Fund money, Mr. Baran “must (1)
identify a protected liberty or property interest, and (2) allege that the defendants ...
deprived [him] of that interest without constitutionally adequate process.” Id. (citing Air
Sunshine, Inc. v. Carl, 663 F.3d 27, 34 (1st Cir. 2011) (internal quotation marks
omitted)).
“Property interests . . . are not created by the Constitution[,] [but] [r]ather .
. . are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law-
rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.”
Miller v. Town of Wenham, 833 F.3d 46, 52 (1st Cir. 2016) (quoting Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577 (1972)).
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“Neither the Constitution nor laws of the United States mandate that state
[departments of corrections] have an inmate recreation fund or how
money in such funds is to be spent. In the absence of a federally created
right to contents of the recreation fund, a federal court may only review
claims relating to the recreation fund if a state creates a property interest
for inmates in those funds.”
Booker v. Supt., Ind. State Prison, Cause No. 3:10-CV-017 RM, 2010 U.S. Dist. LEXIS
4954, at *4, 2010 WL 339093, at *2 (N.D. Ind. Jan. 22, 2010), aff'd sub nom. Booker-El
v. Supt., Ind. State Prison, 668 F.3d 896 (7th Cir. 2012).
Mr. Baran asserts that the Recreation Fund is comprised of money generated
from prisoners’ expenditures. That assertion is supported by the DOC policy
concerning the Recreation Fund, which states that “[f]unds deposited to the Recreation
Fund come from non-appropriated sources, which may include pay telephone
commissions, media commissions, package program commissions, confiscated funds,
donations and interest earned.” PPD 951(d)(1)(a) (May 20, 2020). However, while the
money in the Recreation Fund may have once been the property of individual prisoners,
the money is not placed into the fund until a prisoner spends the money (on phone calls,
media, packages, etc.). Therefore, by the time it is placed in the fund, the “prisoner-
generated” money is no longer the property of any individual prisoner. Mr. Baran
therefore fails to demonstrate that any of the money in the Recreation Fund is his own
private property.6
6 The court notes that Mr. Baran has not described any specific example of how
his own expenditures contributed to the Recreation Fund. The court will assume, for the
sake of this preliminary review, that at some time during his incarceration, Mr. Baran
made a purchase which resulted in some contribution to the Recreation Fund.
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It appears that Mr. Baran is, instead, claiming that as a DOC inmate, he is an
intended beneficiary of the Recreation Fund, and that any misuse of that fund interferes
with his property interest in the benefits which have been, or will be, afforded to DOC
inmates through the use of the Recreation Fund. Mr. Baran also implies that his
claimed property interest in the benefits of the Recreation Fund is impaired by the
defendants’ mishandling of the money, based on his impression that there are
discrepancies in the bank statements and other documents concerning the Recreation
Fund which point to the defendants’ having engaged in wrongdoing. However, Mr.
Baran has failed to demonstrate any private property interest in the Recreation Fund
which is protected by the Due Process Clause. Such an interest would have to be
created by state law or regulations, and neither the language of PPD 951, nor the
language of N.H. Rev. Stat. Ann. § 622:7-a, which authorizes the DOC Commissioner to
expend “any interest on moneys in any account established by the commissioner of
corrections for the benefit of prisoners and their families or dependent relatives . . . for
the benefit of all prisoners,” grants Mr. Baran, or any DOC inmate, any private property
interest in the expenditure of the funds. Mr. Baran cannot assert a Fourteenth
Amendment due process claim because he has failed to demonstrate that he has any
private property interest in the money in the Recreation Fund or the expenditures made
with the Recreation Fund.
As to Mr. Baran’s specific examples of allegedly improper expenditures of money
from the Recreation Fund – on mattresses, Chinese food, and computers for the
education department – all concern uses of the Recreation Fund that are specifically
permitted by PPD 951. That policy grants the DOC Commissioner the discretion to use
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the money in the Recreation Fund “for the benefit of residents and their families or
dependent relatives with the purpose of purchasing and implementing programs,
education and other activities (e.g., recreational supplies, equipment and new initiatives)
for residents at all Department of Corrections’ facilities.” PPD 951(a); see also PPD
951(d)(2). And, while the Recreation Fund money is intended to be “dedicated primarily
to recreation activities within each facility and/or division,” of the DOC, it may be used
differently at each institution, and may address “special population needs (e.g., SPU,
education, medical),” and “administrative expenses affecting all residents and facilities
(e.g. law library, cable TV).” Id. at 951(d)(1)(b).
For the foregoing reasons, the court finds that Mr. Baran fails to state any claim
upon which relief might be granted asserting a violation of his Fourteenth Amendment
due process rights. The district judge, therefore, should dismiss the claim identified in
this Report and Recommendation as Claim 1(a).
B. 	Takings Clause (Claim 1(b))
Mr. Baran asserts that the defendants’ use of money from the Recreation Fund
constituted a taking of his property by the State which violated the Fifth Amendment’s
Takings Clause. The Takings Clause prohibits the taking of private property for public
use without just compensation. See U.S. Const. amend. V, XIV; DeVillier v. Texas, 601
U.S. 285, 291 (2024); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,
160 (1980).
“To make a cognizable claim of a taking in violation of the Fifth
Amendment, the plaintiff[] must first show that [he] possess[es] a
recognized property interest which may be protected by the Fifth
Amendment. The plaintiff [ ] must point to credible sources for [his]
claimed property interest ... ‘such as state law-rules or understandings that
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secure certain benefits and that support claims of entitlement to those
benefits.’”
Asociación de Subscripción Conjunta Del Seguro de Responsabilidad Obligatorio v.
Flores Galarza, 484 F.3d 1, 27 (1st Cir. 2007) (quoting Wash. Legal Found. v. Mass.
Bar Found., 993 F.2d 962, 973 (1st Cir. 1993)); see also Parella v. Ret. Bd. of the R.I.
Emps.’ Ret. Sys., 173 F.3d 46, 58 (1st Cir. 1999) (“[P]laintiffs must first establish an
independent property right before they can argue that the state has taken that right
without just compensation.”).
As discussed above, Mr. Baran has no private property interest in the money in
the Recreation Fund. Accordingly, he cannot state a claim under the Takings Clause
for the defendants’ expenditures from the Recreation Fund, and the district judge should
dismiss Claim 1(b).
C. 	Fourth Amendment (Claim 1(c))
Mr. Baran asserts that “MONEY IS PROPERTY.” Doc. No. 13, at 3. He
maintains that defendants’ misuse of the Recreation Fund and comingling of the
Recreation Fund with the General Fund amounts to an “illegal seizure” of his private
property which violates the Fourth Amendment.
The Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. A “seizure” of personal property occurs when “there is some
meaningful interference with an individual's possessory interests in that property.”
United States v. Jacobsen, 466 U.S. 109, 113 (1984); see also United States v.
Sheehan, 70 F.4th 36, 44 (1st Cir. 2023).
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As previously discussed, Mr. Baran fails to assert facts to show that Mr. Baran
has a private property interest in the money in the Recreation Fund. Accordingly, Baran
has failed to allege sufficient facts to state a Fourth Amendment claim upon which relief
might be granted. The district judge, therefore, should dismiss Mr. Baran’s Fourth
Amendment claim, identified herein as Claim 1(c), on that basis.
D. 	State Law (Claims 2(a)-(c))
Mr. Baran brings claims asserting that the defendants’ conduct violated article 12
of the New Hampshire Constitution, and that the defendants are liable to Mr. Baran
under state tort law. For the reasons set forth in this Report and Recommendation, Mr.
Baran has failed to assert any claim upon which relief might be granted which arises
under federal law. The district judge, therefore, should decline to exercise its
supplemental jurisdiction, see 28 U.S.C. § 1367, over Mr. Baran’s state law claims,
without prejudice to his ability to assert his claims in state court.
E. 	Criminal Conduct (Claim 3)
Mr. Baran asserts that the defendants; misuse of Recreation Fund money was
criminal, in that it constituted theft, embezzlement, and receipt of stolen property. Mr.
Baran states that he provided documentation and shared details about the alleged
misappropriation of the Recreation Fund to the attention of the New Hampshire Attorney
General's Office and to former New Hampshire Governor Chris Sununu so that they
might investigate the defendants’ actions, but that no investigation or prosecution has
been initiated.
An individual has no federal constitutional right to have criminal wrongdoers
brought to justice. See Leeke v. Timmerman, 454 U.S. 83, 87 (1981); Linda R. S. v.
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Richard D., 410 U.S. 614, 619 (1973) (“a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another”). Mr. Baran therefore does not
have a private right of action against the defendants here, based either on the
commission of a crime, or the failure to investigate or prosecute a crime. Accordingly,
the district judge should dismiss the claim identified herein as Claim 3, which is based
on the defendants’ allegedly criminal actions.
F. 	DOC Policies (Claim 4)
Mr. Baran asserts that the defendants’ handling of the Recreation Fund was not
consistent with DOC policy. “In general, a prisoner has no freestanding liberty interest
in having prison officials follow prison policies.” Doe v. N.H. Dep't of Corr., Comm'r, No.
21-cv-604-LM, 2022 U.S. Dist. LEXIS 244214, at *9, 2022 WL 20478432, at *4 (D.N.H.
Nov. 22, 2022), R&R adopted, 2023 U.S. Dist. LEXIS 13751, at *1, 2023 WL 5041812,
at *1 (D.N.H. Aug. 8, 2023); see also McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir.
2012); 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 at *1, 2011 WL 63503 at *1 (D.R.I. Jan. 7, 2011). Accordingly, the district judge
should dismiss Mr. Baran’s claim based on any defendant’s failure to follow DOC
policies, identified herein as Claim 4.
Conclusion
For the foregoing reasons, the court recommends that the district judge dismiss
Claims 1(a)-(c), 3, and 4 with prejudice, and dismiss Claim 2(a)-(c) without prejudice.
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
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extended upon motion. Any issues not preserved by such objection(s) are precluded on
appeal. See id. Failure to file any 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 14, 2026
cc: 	Paul Baran, pro se
Laura Raymond, Esq.
Nathan W. Kenison-Marvin, Esq.
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