Gray v. Pellitier et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey M. Gray
v. 	Case No. 20-cv-153-JL
Northern New Hampshire
Correctional Facility
Sgt. Joey L. Pellitier et al. 1
REPORT AND RECOMMENDATION
Plaintiff, Jeffrey Gray, while he was incarcerated at the
New Hampshire State Prison, filed a pro se complaint pursuant to
42 U.S.C. § 1983 against three officers at the Northern New
Hampshire Correctional Facility (“NCF”). 	Mr. Gray alleges that
the defendants violated his First Amendment right to access the
courts by confiscating his legal materials. 	The complaint is
before the undersigned magistrate judge for preliminary review,
pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).
Background
On November 30, 2017, NCF Sgt. Joey L. Pellitier, NCF
Corrections Officer (“CO”) Thomas F. Macholl, and NCF CO
Kathleen M. Duchesne confiscated all of Mr. Gray’s legal
1 The defendants identified in the complaint are: Northern
New Hampshire Correctional Facility (“NCF”) Sgt. Joey L.
Pellitier and NCF Corrections Officers Thomas F. Macholl and
Kathleen M. Duchesne.
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property. 	One of the items confiscated was an appellate brief
in a state court case, Gray v. Bleeker, No. 2017-0212 (N.H.),
which Mr. Gray was litigating on behalf of himself and his
business. 	Mr. Gray asserts that the brief, which was ready to
mail, was due at the New Hampshire Supreme Court (“NHSC”) on
December 1, 2017. 	Because Mr. Gray did not file a timely brief,
the NHSC dismissed his appeal on December 29, 2017, and denied
his motion to reconsider the dismissal on February 9, 2018. 	Mr.
Gray alleges that the dismissal of that case caused injury to
his business.
Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed by inmates seeking relief from government
employees or entities. 	See 28 U.S.C. § 1915A(a); LR 4.3(d)(1).
Claims may be dismissed if 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. § 1915A(b); LR 4.3(d)(1)(A). 	In considering whether the
complaint states a claim, the court determines whether, stripped
of legal conclusions, and with all reasonable inferences
construed in the plaintiff’s favor, the complaint contains
“sufficient factual matter, accepted as true, to state a claim
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to relief that is plausible on its face.” 	Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted).
Discussion
It is well “established . . . that prisoners have a
constitutional right of access to the courts.” 	Bounds v. Smith,
430 U.S. 817, 821 (1977). 	However, “[t]he right of access to
the courts, in the context of prisoners, is addressed only to a
prisoner’s right to attack his conviction and his right to
challenge the conditions of his confinement.” 	Riva v. Brasseur,
No. 15-2554, 2016 WL 9650983, at *1, 2016 U.S. App. LEXIS 23932,
at *3 (1st Cir. Sep. 12, 2016). 	“‘Impairment of any other
litigating capacity is simply one of the incidental (and
perfectly constitutional) consequences of conviction and
incarceration.’” 	Id. (quoting Lewis v. Casey, 518 U.S. 343, 355
(1996) (emphasis in original)).
Here, Mr. Gray alleges that the defendants interfered with
his ability to litigate a lawsuit concerning his business. 	That
lawsuit challenged neither his criminal conviction nor the
conditions of his confinement. 	Mr. Gray, therefore, cannot
state a constitutional claim for denial of access to the courts
based on the defendants’ alleged interference with that lawsuit.
Accordingly, the district judge should dismiss the complaint in
its entirety.
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Conclusion
For the foregoing reasons, the district judge should
dismiss Mr. Gray’s complaint (Doc. No. 1) in its entirety for
failure to state a claim upon which relief may be granted. 	Any
objection to this Report and Recommendation must be filed within
14 days of receipt of this notice. 	See Fed. R. Civ. P.
72(b)(2). 	The 14-day period may be extended upon motion.
Failure to file a specific written objection to the Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 24, 2021
cc: 	Jeffrey M. Gray, pro se
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