Justice v. Property C.O. Aaron Belanger et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
William Soler Justice
v. 	Case No. 23-cv-308-SE-AJ
Aaron Belanger
Eric Barbaro
REPORT AND RECOMMENDATION
Pro se plaintiff William Soler Justice has filed a
complaint against two New Hampshire corrections officers. (Doc.
No. 1). The complaint is before the court for preliminary review
pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915(e)(2).
Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed in forma pauperis. See LR 4.3(d)(1); see also
28 U.S.C. §§ 1915(e)(2), 1915A. 	The magistrate judge may
recommend to the district judge that one or more claims be
dismissed 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); LR 4.3(d). 	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.’” 	Ashcroft v. Iqbal, 556
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U.S. 662, 678 (2009) (citation omitted). 	The court treats as
true all well-pleaded factual allegations, and construes
reasonable inferences in plaintiff’s favor. 	See Ocasio-
Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Background
At the time he filed the complaint, Mr. Justice was civilly
committed to the New Hampshire Department of Corrections’ Secure
Psychiatric Unit (“SPU”).1 	Mr. Justice alleges that, on April 9,
1 This court described Mr. Justice’s confinement in a
previous lawsuit:
Mr. Justice was charged in the New Hampshire Superior
Court (“Superior Court”) with attempted murder,
assault, and reckless conduct with a dangerous weapon
(a car). On February 9, 2018, the Superior Court found
that Mr. Justice, who has been diagnosed with
schizophrenia, paranoid type, was not competent to
stand trial on the charges against him, and that he
was not restorable to competence. Thereafter, the New
Hampshire Circuit Court, Sixth Circuit, Probate
Division (“Probate Court”) determined that Mr. Justice
was potentially dangerous to himself and others, and
civilly committed him to the Secure Psychiatric Unit
(“SPU”), for a period of five years, with allowance
for a conditional discharge from that placement when
and if such a discharge was clinically appropriate,
pursuant to N.H. Rev. Stat. Ann. § (“RSA”) 135-C. See
Feb. 9, 2018 Invol. Admis. Order, In re Soler, No.
317-2018-IN-00027 (Probate Court) (Doc. No. 1-13, at
1). The SPU is a New Hampshire Department of
Corrections (“DOC”) facility located in the New
Hampshire State Prison.
Justice v. Sununu, No. 20-CV-517-PB, 2022 WL 18275895, at *1
(D.N.H. Dec. 2, 2022), report and recommendation approved sub
nom. Justice v. Governor, NH, No. 20-CV-517-PB, 2023 WL 171364
(D.N.H. Jan. 12, 2023)
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2020, the defendants moved him to two successively more
restrictive settings within SPU – E Ward and F Ward – after he
asked Corrections Officer Belanger for the name of his sister.
He was in each ward for approximately one week.
Mr. Justice further alleges that, after being released from
the restrictive setting, he was missing various personal items,
such as a journal, postage stamps, and a legal notebook. 	He
submitted three request forms regarding the items. The responses
all indicated either that nothing was taken or that items would
be returned upon completion of his restrictive placement.
Discussion
A. Claims Asserted
1. Placement in more restrictive setting
Mr. Justice claims that his two-week placement in the more
restrictive settings of E and F Wings violated his right to due
process. To establish a violation of the Due Process Clause, Mr.
Justice must show that he was deprived of a protected interest
in life, liberty or property and that “‘the procedures attendant
upon that deprivation were constitutionally’” insufficient.
Gonzalez-Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir. 2010)
(citation omitted).
In general, absent facts demonstrating that a particular
prison classification or housing placement imposes an “‘atypical
and significant hardship on the inmate in relation to the
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ordinary incidents of prison life,’” inmates do not have a right
or protected interest in any particular prison classification or
housing placement. See Wilson v. N.H. State Prison Warden, No.
19-cv-127-PB, 2019 WL 2504616 at *2 (D.N.H. May 14, 2019)
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995), report and
recommendation adopted sub nom. Wilson v. N. Corr. Facility,
Warden, No. 19-cv-127-PB, 2019 WL 2503980 at *1 (D.N.H. June 17,
2019)).
At the same time, however, individuals, such as Mr.
Justice, “who have been involuntarily committed are entitled to
more considerate treatment and conditions of confinement than
criminals whose conditions of confinement are designed to
punish.” 	Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982).
Nevertheless, a de minimis impingement of a civilly committed
person’s constitutional interests does not violate the
constitution. 	See id. at 320; see also, Judah v. Ovsak, 550 F.
Supp. 3d 687, 702 (D. Minn. 2021) (“there is a de minimis level
of imposition with which the Constitution is not concerned.”)
(cleaned up).
Here, Mr. Justice alleges that he was subjected to the more
restrictive conditions of E Wing and F Wing for a total of two
weeks. Without more, Mr. Justice’s allegations are insufficient
to assert more than a de minimis insult to his right to
nonpunitive civil confinement, and therefore fail to assert a
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claim under the Fourteenth Amendment. See Sandin, 515 U.S.at 486
(finding that thirty-day period of segregated confinement did
not amount to an atypical and significant hardship); Richardson
v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010) (holding that two
weeks of administrative segregation was not a hardship).
Accordingly, the District Judge should dismiss this claim for
failure to state a claim upon which relief can be granted.
2. 	Missing property
Mr. Justice next asserts that the defendants failed to
return personal property to him that went missing during his
time in E and F Wings. However, “an unauthorized intentional
deprivation of property by a state employee does not constitute
a violation of the Due Process Clause of the Fourteenth
Amendment if a meaningful post-deprivation remedy for the loss
is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).
The State of New Hampshire, through its Board of Claims,
provides a post-deprivation remedy which is adequate to redress
Mr. Justice’s loss of property. 	See RSA 541–B:9 and 541–B:14.
Accordingly, Mr. Justice’s allegations do not support an
actionable cause of action under the Fourteenth Amendment, and
the District Judge should dismiss that claim without prejudice
to Mr. Justice’s ability to bring a claim under state law
concerning his missing property.
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Conclusion
Based on the foregoing, the district judge should dismiss
the complaint (Doc. No. 1) as it fails to set forth a claim for
relief. 	Mr. Justice’s property-related complaint – Claim 2
above -- should be dismissed without prejudice.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. Fed. R.
Civ. P. 72(b)(2). The fourteen-day period may be extended upon
motion. Failure to file any objection 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). Only those issues raised in the objection(s) to this
Report and Recommendation “are subject to review in the district
court.” Id. 	(cleaned up). Additionally, any issues “not
preserved by such objection are precluded on appeal.” Id.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
September 27, 2024
cc: 	William Soler Justice, pro se
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