Morales v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Irvin Morales
v. 	Case No. 23-cv-00522-SM-TSM
Helen Hanks, Commissioner,
New Hampshire Department of
Corrections, et al.
REPORT AND RECOMMENDATION
ON DEFENDANTS’ MOTION TO DISMISS
Pro se plaintiff Irvin Morales (“Morales”) brings this action against four employees of the
New Hampshire Department of Corrections (“NHDOC”),1 claiming that defendants violated his
First Amendment rights by placing him in segregation and ultimately returning him to prison in
New Jersey, where he was originally incarcerated, in retaliation for filing two separate lawsuits
challenging the conditions of his confinement while in NHDOC custody. The matter is before the
court on defendants’ Motion to Dismiss (Doc. No. 18). Defendants contend that Morales’ claim
must be dismissed because plaintiff “fails to state a claim that Defendants violated his First
Amendment right to petition the government for a redress of grievances[,]” fails to allege that
defendants engaged in adverse actions “that would deter him from exercising his constitutional
rights,” and fails to allege a plausible link between defendants’ actions and plaintiff’s lawsuits.
After consideration of the parties’ arguments and Morales’ Civil Rights Complaint (“Complaint”),
this court concludes that defendants misconstrue Morales’ theory of liability and that plaintiff
1 Defendants include Helen Hanks, the New Hampshire Commissioner of Corrections during the
relevant time period; Michelle Edmark, the Warden of the New Hampshire State Prison for Men
(“NHSP”); Sarah Provencher, the Deputy Warden of the NHSP during the relevant time period;
and James Azzara, the Chief of Investigations at the NHSP during the relevant time period.
Morales sued each of the defendants in both their individual and official capacities.
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adequately alleges a First Amendment retaliation claim. Accordingly, for all the reasons described
below, this court recommends that the motion to dismiss be DENIED.
BACKGROUND
When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must
“accept as true all well-pleaded facts set forth in the complaint and draw all reasonable inferences
therefrom in the pleader’s favor.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting
Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011)). The court “may augment these facts
and inferences with data points gleaned from documents incorporated by reference into the
complaint, matters of public record, and facts susceptible of judicial notice.” Id. Where, as here,
the plaintiff is proceeding pro se, the court must construe his allegations liberally. 	Erickson v.
Pardus, 551 U.S. 89, 94 (2007 (per curiam) (documents filed pro se must “be liberally construed”
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, the court will “not credit ‘bald
assertions, unsupportable conclusions, periphrastic circumlocutions, and the like.’” 	Redondo-
Borges v. U.S. Dep’t of Hous. & Urban Dev., 421 F.3d 1, 5 (1st Cir. 2005) (quoting Aulson v.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)). Applying this standard to the instant case, the relevant
facts are as follows.2
Morales’ Transfer to New Hampshire
Morales is a New Jersey inmate who is serving a sentence imposed by a New Jersey state
court. Complaint ¶ 12. In or about July 2009, Morales, who was then incarcerated in New Jersey,
2 The facts are derived from the Complaint (Doc. No. 1) and from the Inmate Agreement of Waiver
Regarding Interstate Transfer (“Inmate Waiver”) attached as Exhibit A (“Ex. A”) to defendants’
Reply to Plaintiff’s Opposition to Defendants’ Motion to Dismiss (Doc. No. 24). 	“When the
complaint relies upon a document, whose authenticity is not challenged, such a document ‘merges
into the pleadings’ and the court may properly consider it under a Rule 12(b)(6) motion to dismiss.”
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requested an interstate transfer so he could be closer to, and receive visits from, his ailing mother
and his sister, both of whom reside in New Hampshire. Id. ¶ 14; see also Ex. A. On July 24, 2009,
Morales signed an Inmate Waiver whereby he agreed to be transferred from New Jersey to New
Hampshire “under the terms of the Interstate Corrections Compact.” 	Ex. A. 	The Interstate
Corrections Compact (“ICC”) “is designed to permit cooperative use of facilities and programs by
the Federal government and by the states which are parties to the Compact.” Dozier v. Hilton, 507
F. Supp. 1299, 1308 (D.N.J. 1981). 	Under the ICC, “a prisoner convicted in one state, the
‘sending’ state, may be confined in another state, the ‘receiving state.” Martin v. Warren, No. 12-
4670 (AET), 2012 WL 3316830, at *1 (D.N.J. Aug. 13, 2012).
By signing the Inmate Waiver, Morales agreed that a transfer to New Hampshire could
involve certain “differences in the course and character of the correctional facility treatment,
operations and programming” as well as possible adjustments in his “custody status/assignment[,]”
but he also acknowledged that “the benefits of transfer under the [ICC]” would be “worth any
adjustments in [his] situation.” Ex. A. Significantly, Morales also acknowledged as follows: “In
further consideration of being granted the privilege of an interstate transfer, I agree that I will
waive extradition, and I will return without protest to the State of New Jersey whenever such return
is initiated by either State.” Id. As detailed below, defendants argue that Morales’ agreement to
return to New Jersey without protest compels the dismissal of his claim against them. This court
disagrees for the reasons described herein.
Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 34 (1st Cir. 2001) (quoting
Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998)). In his Complaint, Morales
alleges that in 2010, New Jersey transferred him to New Hampshire pursuant to the “Interstate
Corrections Compact.” Complaint ¶ 13. Because the Inmate Waiver was one of the documents
required for his transfer under the Interstate Corrections Compact, and Morales authenticated it
during a hearing before the court on his motion for a preliminary injunction, this court finds it
appropriate to consider the Inmate Waiver in connection with the instant motion to dismiss.
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Following Morales’ execution of the Waiver, New Jersey granted plaintiff’s request and
transferred him to New Hampshire in 2010, pursuant to the ICC. Complaint ¶ 13. Morales was
then incarcerated in the New Hampshire State Prison for Men (“NHSP”). See id. ¶ 4. He alleges
that he remained in New Hampshire until November 2022, when he was picked up by officers
from the New Jersey Department of Corrections (“NJDOC”) and transferred to an NJDOC
facility.3 See id. ¶¶ 36-37. He further alleges that defendants transferred him back to New Jersey
in retaliation for his filing and prosecution of two civil rights actions against the NHDOC and
some of its employees. Id. ¶ 61.
Morales’ Litigation Against the NHDOC
Morales filed his two civil rights actions, Morales v. Carr, No. 17-cv-00234-SM (D.N.H)
(“Morales I”) and Morales v. N.H. Dep’t of Corr., No. 217-2022-cv-00425 (N.H. Super. Ct.,
Merrimack Cty.) (“Morales II”), while he was incarcerated in New Hampshire. See id. ¶¶ 15, 18.
Both actions concerned plaintiff’s conditions of confinement while he was in NHDOC custody.
Specifically, in Morales I, Morales claimed that NHDOC employees violated his constitutional
rights in connection with a strip search. Id. ¶¶ 15-16. In Morales II, plaintiff claimed that personnel
at the NHSP violated his rights by refusing to provide him with medical treatment after he was
sprayed in the eyes with a caustic chemical that eventually damaged his eyes and his eyesight. Id.
¶ 18.
3 In his Complaint, Morales alleges that he “was picked up by NJDOC officers” on or about
November 3, 2022, and “transported to a NHDOC facility.” Complaint ¶ 36. However, it is clear
that “NHDOC” is a typographical error and that Morales meant to allege that he was “transported
to a NJDOC facility.”
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Alleged Discipline Against Morales
Morales alleges that on July 31, 2022, a little over two months after he filed a motion to
compel the production of documents in Morales I, and about a month and a half after he initiated
Morales II, he “was abruptly removed from his housing unit [at the NHSP] and placed into the
Secure Housing Unit (SHU) and stripped of all his legal files and paperwork[.]” Id. ¶ 19. One
day later, on August 1, 2022, Morales allegedly received a disciplinary report in which he was
charged with a “39-B” infraction for being “unduly familiar” with staff because he had given a
birthday card to a female staff member and wished her a happy birthday.4 Id. ¶ 20; see also id. ¶
21. Morales pleaded guilty to the disciplinary charge on August 2, 2022, and was sanctioned to
25 days of lost privileges. Id. ¶ 21. He claims, however, that he received no segregation time as
a sanction for his misconduct.5 	Id. 	Thus, Morales claims that his confinement in SHU was
motivated, not by his conduct with respect to the female staff member, but instead by defendants’
desire to retaliate against him for the filing and prosecution of his civil rights actions against the
NHDOC and its employees. Id. ¶ 61.
Morales alleges that on August 10, 2022, he was moved from SHU to a regular housing
unit at the NHSP, and on August 11, 2022, defendants decided to transfer plaintiff to the Northern
New Hampshire Correctional Facility (“NNHCF”). 	Id. ¶¶ 22-23. 	According to the Complaint,
“NNHCF is a maximum-security prison which incarcerates the most dangerous inmates within
4 NHDOC Policy and Procedure Directive (“PPD”) 5.25, which appears to have been effective
when Morales received his disciplinary report, defines a “39B/C” offense as a failure “to obey any
written rule, posted notice or procedure of the institution or order of any staff member.” PPD 5.25,
Att. 1 at 3.
5 Morales alleges that disciplinary segregation is not permitted for a 39-B infraction. Complaint ¶
21. However, PPD 5.25 indicates that category “B” infractions can result in up to 5 days of solitary
confinement. PPD 5.25, Att. 1 at 1.
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New Hampshire.” Id. ¶ 25. Although defendants allegedly indicated that their decision to move
Morales to that facility was based on plaintiff’s disciplinary infraction at the NHSP, Morales
claims that institutional transfers are generally not permitted as a sanction for a 39-B infraction
and that the real reason for their decision was to punish him “for his exercise of his First
Amendment Rights.” Id. ¶¶ 21, 23, 54.
On August 12, 2022, defendants allegedly decided, without explanation, to remove
Morales from regular housing and return him to segregation in the SHU pending his transfer to
NNHCF. Id. ¶ 24. The following day, on August 13, 2023, Morales allegedly notified two NHSP
staff members that he could not be housed safely at NNHCF because there had been a plot to
assault him when he was last housed there. Id. ¶ 27. He subsequently initiated a grievance process
by submitting an Inmate Request Slip complaining about his inability to be safely housed at the
NNHCF. Id. ¶ 28. Nevertheless, on or about September 5, 2022, Morales was allegedly transferred
to the NNHCF. Id. ¶ 29. Morales claims that due to the threats to his safety, he was forced to seek
protective segregation upon arrival at the NNHCF. 	Id. ¶ 30. 	He also alleges that the NHDOC
continued to withhold his legal files and paperwork. Id.
Morales’ Transfer Back to New Jersey
On September 9, 2022, the Morales I court issued an order directing the NHDOC to
transport Morales to the courthouse for an in-person hearing. Id. ¶¶ 31, 56. Morales alleges that
as a result of the court’s order, he was transferred back to the NHSP on or about October 6, 2022.
Id. ¶¶ 32, 57. However, instead of placing Morales in the general population unit at the NHSP,
the NHDOC returned plaintiff to the SHU. 	Id. 	Morales claims that his placement in the SHU
occurred in retaliation for the filing and prosecution of his civil rights actions against NHDOC
officials. Id. ¶ 61.
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Shortly thereafter, defendants allegedly decided to transfer Morales back to New Jersey
following the completion of his court hearing. 	Id. ¶ 33. 	According to Morales, defendants’
justification for their decision was that plaintiff could not be housed safely at the NNHCF and
could no longer be housed at the NHSP due to his disciplinary infraction. 	Id. 	Morales claims,
however, that defendants’ stated basis for their decision to send him back to New Jersey was a
pretext for retaliation. See id. ¶¶ 33, 58, 61. In any event, Morales alleges that on or about October
11, 2022, defendants ordered NHSP staff to contact the NJDOC and arrange for them to retrieve
plaintiff within 30 days for transfer back to New Jersey. Id. ¶ 34.
On October 20, 2022, Morales was transported to the court for a hearing in Morales I. Id.
¶ 35. 	Because Morales had none of the relevant legal papers with him, the court continued the
hearing to November 7, 2022. Id. See also Morales I, Case No. 1:17-cv-00234-SM-AJ at Docket
Entry dated 10/20/2022. 	It also issued an order directing the Warden of the NHSP to transport
plaintiff back to the court for the November 7, 2022 hearing. Complaint ¶ 35; Morales I at Doc.
No. 132. However, on or about November 3, 2022, Morales was picked up by NJDOC officers
and transported to an NJDOC facility. Id. ¶ 36.
Morales claims that he is presently incarcerated in New Jersey’s Northern State Prison
(“NSP”), a maximum security prison that largely houses violent offenders and “has many security
challenges.” 	Id. ¶¶ 37-38. 	He also claims that “[c]ompared to NHSP, Morales’s freedom and
conditions of confinement have drastically been restricted.” Id. ¶ 39. Specifically, Morales alleges
that inmates at NSP “are regularly locked down with little to no out-of-cell freedom due to physical
alterations.” Id. ¶ 38. He also alleges that inmates must eat in their cells during lockdowns; have
little, if any, opportunities to work, receive wages, and participate in educational programs or
sports; and have limited access to telephones or other means of communications. Id. In contrast,
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Morales alleges that during his confinement at the NHSP, he “was never locked in his cell” and
was only locked in his pod between 9:00 p.m. and 5:00 a.m. each day. 	Id. ¶ 40. 	Additionally,
Morales alleges that prisoners at the NHSP have ample opportunities to work and receive wages,
and to participate in educational programs, sports, fitness, Hobbycraft and religious activities. Id.
Furthermore, Morales alleges that prisoners housed at the NHSP eat in a common dining hall and
have access to electronic devices that can be used for television, email, video games, music and
other activities. Id. In short, Morales claims that the conditions of his confinement were far better
in New Hampshire than they are in New Jersey.
Preliminary Review of Complaint
Morales filed his Complaint in this action on December 4, 2023. Doc. No. 1. On February
5, 2024, the case was referred to the undersigned Magistrate Judge for a preliminary review
pursuant to Local Rule 4.3(d)(1) and 28 U.S.C. § 1915A(a). 	On February 28, 2024, this court
issued an Order in which it concluded that Morales alleged sufficient facts to state a claim under
the applicable standard and could therefore proceed with his lawsuit. Doc. No. 8. Specifically,
this court construed Morales’ claim as follows:
The defendants violated Mr. Morales’s First Amendment right to petition the
government for a redress of grievances by returning him to the NJ DOC in
retaliation for his litigation of two civil cases alleging unconstitutional conditions
of confinement at the NH DOC, in order to interfere with his litigation of those
cases, and to subject him to conditions of confinement which are less favorable to
Mr. Morales than those in the NH DOC.
Id. at 4. This court then directed service of this claim on defendants named in Morales’ Complaint,
and on May 20, 2024, defendants filed their present Motion to Dismiss. Id.; Doc. No. 18.
LEGAL STANDARD
Defendants move to dismiss Morales’ Complaint for failure to state a claim under Fed. R.
Civ. P. 12(b)(6). To survive such a motion, “a complaint must contain sufficient factual matter,
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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 	“In
evaluating whether a complaint states a plausible claim, [the court] ‘perform[s] [a] two-step
analysis.’” Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (third alteration in original) (quoting
Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015)). “First, the court must
distinguish the complaint’s factual allegations (which must be accepted as true) from its conclusory
legal allegations (which need not be credited).” García-Catalán v. United States, 734 F.3d 100,
103 (1st Cir. 2013) (internal quotations and citation omitted). “Second, the court must determine
whether the factual allegations are sufficient to support the reasonable inference that the
defendant[s] [are] liable for the misconduct alleged.” Id. (internal quotations and citation omitted).
This second step requires the reviewing court to “draw on its judicial experience and common
sense.” 	Id. (internal quotations and citation omitted). 	“While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations,” the plaintiff must provide
“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp., 550 U.S. at 555. (citations omitted). “If the factual allegations in
the complaint are too meager, vague, or conclusory to remove the possibility of relief from the
realm of mere conjecture, the complaint is open to dismissal.” Morales-Cruz v. Univ. of P.R., 676
F.3d 220, 224 (1st Cir. 2012) (internal quotations and citation omitted).
DISCUSSION
Defendants argue, in support of their motion, that “Morales fails to state a claim that
Defendants violated his First Amendment right to petition the government for a redress of his
grievances” because his two prior lawsuits against the NHDOC are ongoing and Morales does not
allege that he has been denied access to the courts. 	Doc. No. 18 at 3-4. 	They also argue that
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dismissal is warranted because he fails to allege that defendants engaged in an adverse action with
the aim of deterring him from exercising his constitutional right to access the courts. See id. at 4-
6. Additionally, in their Reply in support of their motion, defendants argue that Morales fails to
state a plausible claim for relief because a prisoner has no right to confinement in the state of his
choosing and because Morales waived any right to object to his return to New Jersey when he
signed the Inmate Waiver. Doc. No. 24 at 4-7.
Morales opposes defendants’ motion on several grounds. First, he argues that the motion
should be denied because this court already reviewed his Complaint pursuant to LR 4.3(d) and 28
U.S.C. § 1915A(a), and concluded at that it alleges a valid First Amendment retaliation claim.
Doc. No. 20 at 3-4. Next, he contends that the motion to dismiss should be denied on the merits
because he alleges sufficient facts to show that defendants took adverse actions against him by
subjecting him to harsher and more dangerous conditions of confinement without a legitimate
penological justification Id. at 4-6; Doc. No. 29 at 3, 7. Furthermore, Morales maintains that the
Complaint contains sufficient facts to establish that defendants’ true reason for transferring him to
segregation and NNHCF, and ultimately to New Jersey, was to retaliate against him for exercising
his First Amendment rights. Doc. No. 20 at 6-7. This court concludes that defendants’ motion to
dismiss should be denied.
I. 	Effect of the Court’s Initial Screening on the Motion to Dismiss
The threshold issue raised by the parties’ arguments is whether the court’s ruling on
preliminary review – that Morales asserted sufficient facts to state a plausible claim for relief –
precludes consideration of the present motion to dismiss. Morales argues that the court reviews a
motion to dismiss for failure to state a claim under the same standard that it applies when it
conducts its initial screening of the complaint under LR 4.3(d) and 28 U.S.C. § 1915A. See Doc.
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20 at 3. He further reasons that because the court decided the issue raised by defendants’ motion
to dismiss, there is no justification for considering their motion at this juncture. Id. at 4.
Morales is correct that “[r]eview of a complaint under § 1915A is done under the same
standard applicable to a motion to dismiss under Fed. R. Civ. P. 12(b).” Harris v. Ruthenberg, 62
F. Supp. 3d 793, 800 (N.D. Ill. 2014). However, the statute does not prevent further scrutiny to
determine whether the complaint fails to state a claim. See id. (“Courts that have addressed the
question of whether a complaint can be dismissed after it survives § 1915A screening have, almost
invariably, answered yes. Notably, under 28 U.S.C. §1915(e)(2), a court may dismiss a case ‘at
any time’ if it determines the complaint fails to state a claim.” (internal citations omitted)).
Consequently, a court’s finding, upon preliminary review, that a plaintiff alleged sufficient facts
to allow his complaint to proceed, “does not foreclose Defendants from filing a motion to dismiss
for failure to state a cognizable claim.” Pona v. Weeden, No. 16-612S, 2017 WL 3279012, at *3
n.7 (D.R.I. June 29, 2017). See also Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal.
2007) (“a defendant’s right to bring a motion to dismiss is not foreclosed by the issuance of a sua
sponte screening providing that the prisoner has stated a claim”). Denial of defendants’ motion is
not appropriate on this basis.
II. 	Whether the Complaint States a Plausible Claim for Relief
The next issue raised by the parties’ arguments is whether the Complaint states a plausible
claim for First Amendment retaliation involving Morales’ transfers within New Hampshire and
from New Hampshire to New Jersey. 	For the reasons that follow, this court finds that the
Complaint satisfies the requisite pleading requirements and that defendants’ motion to dismiss
should be denied.
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A. Nature of Morales’ claim against defendants
Defendants’ initial challenge to Morales’ Complaint – that it fails to state a claim that they
violated plaintiff’s right to petition the government for a redress of his grievances because Morales
cannot show that he has been denied access to the courts – misconstrues the nature of Morales’
retaliation claim. 	Additionally, defendants’ argument, which is set forth in their Reply
memorandum, that Morales has no liberty interest or other constitutional right to be housed in a
particular prison or a particular state, reflects a misunderstanding of Morales’ allegations. 	See
Doc. No. 24 at 4-5. Morales is not claiming that defendants violated his constitutional rights by
depriving him of access to the courts. Nor is he claiming that defendants violated his constitutional
rights by depriving him of the ability to remain in New Hampshire. Rather, as this court ruled on
preliminary review, Morales asserts that defendants violated his First Amendment right of access
to the courts without facing retaliation.
“[G]overnment actions, which standing alone do not violate the Constitution, may
nonetheless be constitutional torts if motivated in substantial part by a desire to punish an
individual for exercise of a constitutional right.” 	Starr v. Moore, No. 09-cv-440-JL, 2010 WL
3002107, at *8 (D.N.H. July 27, 2010) (alteration in original) (quoting Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir. 2003)). “Thus, the fact that a prisoner does not have a constitutional right to a
particular prison placement does not doom [Morales’] case.” Holleman v. Zatecky, 951 F.3d 873,
878 (7th Cir. 2020). Likewise, Morales’ case is not doomed because he has been able to litigate
his civil rights actions since moving to New Jersey. “Prison officials may not punish an inmate
because he exercises his constitutional right of access to the courts.” Sisneros v. Nix, 95 F.3d 749,
751 (8th Cir. 1996). Here, Morales alleges that defendants transferred him into more restrictive
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and dangerous conditions of confinement in retaliation for his actions in filing and prosecuting
Morales I and Morales II. See Complaint ¶¶ 54, 61.
To state a claim of retaliatory transfer in violation of the First Amendment, a plaintiff must
allege that “(1) he engaged in conduct protected by the First Amendment, (2) adverse action was
taken against him that was sufficient to chill his exercise of protected conduct, and (3) there is a
causal connection between his protected conduct and the adverse action.” Smith v. Warden, N.H.
State Prison, No. 05-cv-374-JD, 2008 WL 282263, at *5 (D.N.H. Jan. 31, 2008). In the instant
case, there can be no question that Morales engaged in conduct protected by the First Amendment
by filing and pursuing litigation against the NHDOC and its employees in Morales I and Morales
II. 	See Starr, 2010 WL 3002107, at *9 (finding that plaintiff’s “judicial litigation activities are
protected by the First Amendment as an exercise of his right to petition the government to redress
grievances”); Price v. Wall, 464 F. Supp. 2d 90, 96-97 (D.R.I. 2006) (finding that plaintiff satisfied
the first element of his First Amendment retaliation claim where the undisputed facts showed that
he filed suit in state court against the Rhode Island Department of Corrections). At issue is whether
his Complaint contains sufficient facts to satisfy the second and third elements of a retaliation
claim against defendants.
B. Whether Morales alleges an adverse action
Notwithstanding their misunderstanding regarding the nature of Morales’ retaliation claim,
defendants recognize that a prison official’s conduct may rise to the level of a constitutional
violation if the “official takes an adverse action against a prisoner to punish or deter a prisoner’s
right to petition the government[.]” Doc. No. 18 at 4. Defendants further argue that Morales fails
to state any such a claim because he “does not allege that Defendants engaged in an adverse action
that would deter him from exercising his constitutional rights, nor could one be reasonably inferred
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from his Complaint.” Id. This court finds that the Complaint contains sufficient facts to meet the
relevant standard.
To state an “adverse action” for purposes of a First Amendment retaliation claim, “plaintiff
must allege that the defendants subjected him to ‘conduct that would deter a similarly situated
individual of ordinary firmness from exercising his or her Constitutional rights.’” Starr, 2010 WL
3002107, at *9 (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other
grounds by Phelps v. Kapnolas, 308 F.3d 180, 187 n.6 (2d Cir. 2002)). 	“This is an objective
standard; it does not hinge on the personal experience of the plaintiff.” Holleman, 951 F.3d at 880.
“Even if a particular inmate is not chilled in his expression, a claim for retaliation may still arise
if the retaliatory behavior alleged is objectively sufficient and onerous to deter an ordinary person
from exercising his rights.” Starr, 2010 WL 3002107, at *9.
“In the prison context, actions comparable to a transfer to segregation or an involuntary
transfer to an out of state prison can generally be considered ‘adverse’ to an inmate.” Price, 464
F. Supp. 2d at 97. See also Smith v. Warden, N.H. State Prison, No. Civ. 05-CV-374-JD, 2006
WL 1425063, at *7 (D.N.H. Apr. 25, 2006) (finding, on preliminary review, that prisoner stated
viable First Amendment retaliation claims against prison officials where he alleged that
“defendants transferred him to Texas in retaliation for his prosecution of claims against NHSP
employees”). Similarly, a transfer that “place[s] significantly more restrictions” on a prisoner’s
freedom or subjects the prisoner to a “dangerous environment” may be sufficient to establish an
adverse action. 	Holleman, 951 F.3d at 881-82. 	In addition, conduct involving the “intentional
destruction or confiscation of personal property and legal materials without cause is an adverse
action.” 	Cook v. Maloney, No. 03-12138-RWZ, 2010 WL 1381859, at *3 (D. Mass. Mar. 30,
2010). In the instant case, Morales alleges that he was placed in segregation in retaliation for filing
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his civil rights actions against NHDOC officials, and that defendants subsequently transferred him
to NNHCF in retaliation for exercising his First Amendment rights, even though they knew that
confining him in that facility would endanger his safety. Complaint ¶¶ 54, 61. He also alleges
that in connection with his retaliatory transfers, defendants confiscated and failed to return his
legal files and paperwork, including paperwork that he needed for his October 2022 hearing before
the Morales I court. 	See id. ¶¶ 19, 24, 30, 35. 	Furthermore, Morales alleges that defendants’
decision to retaliate against him, by transferring him back to New Jersey, resulted in significant
restrictions on his freedom. 	See id. ¶¶ 38-40, 61-65. 	As the relevant case law indicates, these
allegations are more than adequate to satisfy the “adverse action” requirement for stating a viable
retaliation claim against defendants at this early stage in the litigation.
In their Reply in support of their motion to dismiss, defendants argue that Morales’ Inmate
Waiver defeats his claim that they engaged in an adverse action against him when they returned
him to New Jersey. See Doc. No. 24 at 5-7. Specifically, defendants argue that by signing the
Inmate Waiver, Morales expressly agreed to return to New Jersey, “without protest[,]” in the event
New Hampshire or New Jersey initiated such a transfer. Id. at 6 (emphasis omitted). They reason
that under these circumstances, no similarly situated inmate, especially one who admitted to
violating prison rules, could plausibly allege that his transfer back to the sending state “could chill
the exercise of a constitutional right to petition the government[.]” Id. at 7. Arguments raised for
the first time in a reply memorandum ordinarily are deemed waived. Frese v. MacDonald, 512 F.
Supp. 3d 273, 290 (D.N.H. 2021) (deeming State’s “new argument, raised for the first time in a
reply to a second motion to dismiss, waived.”). Because defendants raised this argument for the
first time in their Reply memorandum, this court concludes that it is waived.
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Even if defendants’ argument concerning the Inmate Waiver were not waived, the Inmate
Waiver would not support a dismissal pursuant to Rule 12(b)(6). 	The prohibition against
retaliatory punishment applies both to transfers within a state, as well as to transfers involving
prisons outside the state. See Sisneros, 95 F.3d at 751. Accordingly, “a transfer in retaliation for
exercising federal constitutional rights is actionable” despite the language contained in a prisoner’s
ICC documents. See id. at 752 (ruling that district court properly undertook to determine whether
decision to transfer prisoner back to sending state under the ICC was unconstitutionally retaliatory
even though language in ICC documents required sending state to “retake any inmate” upon
request). 	In addition, nothing in Morales’ Inmate Waiver precludes plaintiff from challenging the
constitutionality of his transfer or waives his right to do so. Therefore, the Inmate Waiver does
not preclude him from seeking to hold defendants liable for violation of his constitutional rights.
C. Existence of a causal connection between the protected conduct and the adverse actions
Defendants also argue that Morales’ Complaint should be dismissed because there is “no
plausible nexus between NH-DOC’s actions and Mr. Morales’s lawsuits” and because all the
challenged transfers were based on legitimate penological interests rather than retaliatory animus.
Doc. No. 18 at 5; Doc. No. 24 at 7. 	Relying on Morales’ admission that he broke prison rules
regarding his interaction with a female staff member, defendants contend that they removed
Morales from his regular housing, and then to the NNHSP, so they could maintain the safety of
NHSP staff. See Doc. No. 18 at 5. They further contend that they returned Morales to New Jersey
once it became clear that he could not be housed safely in the NNHSP and that their best option
was to return him to the custody of the NJDOC. Id. at 5-6. Therefore, according to defendants,
Morales fails to state a plausible claim that defendants acted in retaliation for his civil rights
litigation against the NHDOC. See Doc. No. 24 at 10.
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Defendants’ assertion that there is no causal connection between Morales’ lawsuits and his
transfers is at odds with plaintiff’s allegations. 	In his Complaint, Morales alleges that the
defendants’ decisions to confine him in segregation, to send him to NNHCF, and to transfer him
back to New Jersey were all motivated by a desire to retaliate against him for the filing and
prosecution of his civil rights claims. Complaint ¶¶ 54, 61. He also alleges that the defendants’
justifications for their decisions were untrue and merely a pretext for retaliation. Id. ¶¶ 23, 33,52,
54, 58, 61. 	Additionally, Morales alleges specific facts that, when accepted as true, support an
inference that the transfer decisions were retaliatory.
“Circumstantial evidence is often enough to support a claim that an adverse action was
taken with retaliatory intent, as intentions are often difficult to prove through direct evidence.”
Starr, 2010 WL 3002107, at *9. Here, Morales alleges various facts supporting an inference of
retaliation on the part of the defendants. For example, Morales alleges that within a little over two
months after he filed a motion to compel in Morales I, and about month and a half after he initiated
Morales II, he was “abruptly” removed from his housing unit at the NHSP, placed in SHU, and
deprived of all his legal paperwork. Complaint ¶¶ 17-19, 45-46, 48. He further alleges that his
placement in SHU, both at that time and on two subsequent occasions, could not have been based
on his disciplinary infraction because he received no segregation time as a sanction for his
misconduct. See id. ¶¶ 21, 24, 32. These allegations undermine defendants’ contention that there
was a penological justification for Morales’ placement in segregation. 	They further support an
inference that his confinement in SHU was motivated by a desire to retaliate against him for filing
and prosecuting his civil rights litigation against the NHDOC. See Ferranti v. Moran, 618 F.2d
888, 892 (1st Cir. 1980) (finding that inference of retaliation was warranted from the chronology
of prisoner’s alleged events, fact that plaintiff’s prior lawsuits were directed at prison officials and
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challenged prison conditions, and defendants’ alleged interference with plaintiff’s access to legal-
related paperwork).
Morales’ allegations regarding the circumstances of his transfer to NNHCF and subsequent
return to New Jersey, when viewed in plaintiff’s favor, also support an inference of retaliatory
intent. Thus, Morales alleges that after pleading guilty to the 39-B infraction, he was sanctioned
only with 25 days of lost privileges. 	Id. ¶ 21. 	He further alleges that institutional transfer is
generally not permitted as a sanction for such an infraction. Id. Nevertheless, defendants allegedly
decided to transfer plaintiff to NNHCF, and did so even though they knew of the danger that it
would pose to Morales’ safety. Id. ¶¶ 23, 27-29. They also continued to withhold Morales’ legal
files and paperwork, which interfered with a scheduled hearing before the court in Morales I. See
id. ¶¶ 30, 35. 	Accordingly, Morales effectively alleges that there was no penological basis for
defendants’ decision to transfer him to NNHCF, and that their actions were motivated by desire to
retaliate against him for exercising his right of access to the courts. 	Additionally, because the
alleged facts support an inference that defendants had no legitimate penological interest in
transferring Morales away from the NHSP in the first place, plaintiff has stated a plausible basis
for his claim that the decision to transfer him to New Jersey instead of returning him to the NHSP
was retaliatory as well. Therefore, he has satisfied all three elements of his claim for retaliatory
transfer, in violation of his constitutional rights, and defendants’ motion to dismiss should be
denied.
CONCLUSION
For all the reasons detailed herein, this court recommends that defendants’ Motion to
Dismiss (Doc. No. 18) be DENIED. Any objections to this Report and Recommendation must be
filed within fourteen (14) days of receipt of this notice. The fourteen day period may be extended
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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” and any issues “not preserved by such objection are precluded on
appeal.” Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010) (quoting
Keating v. Sec’y of Health & Hum. Servs., 848 F.2d 271, 275 (1st Cir. 1988)).
______________________________
Talesha L. Saint-Marc
United States Magistrate Judge
August 2, 2024
cc: 	Irvin Morales, pro se
Counsel of record
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