Doiron v. Brown et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Arthur Doiron
v. 	Case No. 21-cv-360-SM
Lt. Jim Brown et al. 1
REPORT AND RECOMMENDATION
Arthur Doiron, who is incarcerated at the New Hampshire
State Prison (“NHSP”), filed an action in this court under 42
U.S.C. § 1983, asserting that the defendants, New Hampshire
Department of Corrections (“DOC”) employees, violated rights
accruing to him under the Due Process Clause of the Fourteenth
Amendment, the Eighth Amendment, the First Amendment, and state
law. 	Before the court for consideration and a Report and
Recommendation (“R&R”) as to disposition is Mr. Doiron’s “Motion
for Preliminary Injunction” (Doc. No. 2). 	Mr. Doiron seeks a
preliminary injunction directing the defendants: (1) to vacate
1 Mr. Doiron names the following defendants to this action:
New Hampshire State Prison (“NHSP”) Lt. Jim Brown; NHSP
Disciplinary Hearing Officer Sgt. Barton, whose first name is
unknown (“FNU”); NHSP Maj. Jon Fouts; NHSP Warden Michelle
Edmark; NHSP Corrections Officers FNU Navarro and FNU Partridge;
NHSP Classification Officials Glenn Matthews, Jay Mackey, and
Tara Whiting; New Hampshire Department of Corrections (“DOC”)
Commissioner Helen Hanks; and DOC Commissioner Designee Chris
Kench. 	Each plaintiff is sued in her or his individual
capacity.
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the guilty findings and sanctions imposed on him on April 1,
2021 with regard to two prison disciplinary offenses; (2) to
reverse the April 14, 2021 classification security level upgrade
effected as a result of those disciplinary offenses; and (3) to
grant Mr. Doiron 120 days of earned time credit which he claims
the defendants improperly prevented him from earning.
Background2
On or before January 29, 2021, NHSP Lt. Jim Brown charged
Mr. Doiron with two disciplinary offenses, alleging that Mr.
Doiron had telephone conversations with his mother about having
repairs made to their truck, and that those conversations were
actually coded communications related to drug transactions and
bringing drugs into the prison. 	Lt. Brown alleged that those
conversations constituted evidence of a conspiracy which
resulted in the introduction of illicit drugs into the NHSP.
On January 29, 2021, Mr. Doiron was removed from his medium
custody housing unit and placed in the prison’s Special Housing
Unit (“SHU”) on “Pending Administrative Review” (“PAR”) status
in connection with his disciplinary charges. 	Mr. Doiron asserts
2 The background facts are derived from the factual
allegations in Mr. Doiron’s motion (Doc. No. 2), complaint (Doc.
No. 1), and complaint supplement (Doc. No. 4-1).
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that when he was placed on PAR status and moved to the SHU, he
was automatically removed from all of the classes in which he
was enrolled, and from the waitlists for an anger management
class and Family Connections Center program. 	Mr. Doiron asserts
that he would have earned a sixty-day reduction of his minimum
and maximum sentences had he been allowed to complete the
“Thinking for a Change” class, and an additional sixty-day
reduction of his minimum and maximum sentences had he been
allowed to take and complete the anger management class. 	Mr.
Doiron remained on PAR status until his April 1, 2021
disciplinary hearing on those charges.
Mr. Doiron’s disciplinary hearing was originally scheduled
for February 22, 2021, but was continued to March 1, 2021 at Mr.
Doiron’s request. 	On March 1, 2021, however, Mr. Doiron was
moved to the NHSP Health Services Center (“HSC”) where he was
placed on suicide watch. 	Mr. Doiron remained in the HSC on
suicide watch until March 31, 2021. 	Mr. Doiron’s disciplinary
hearing was continued until April 1, 2021, less than twenty-four
hours after he was released from suicide watch.
Following that hearing, Disciplinary Hearing Officer Sgt.
Barton found Mr. Doiron guilty of the charged disciplinary
offenses and imposed sanctions, including 125 hours of extra
duty and 125 days loss of visits. 	Mr. Doiron states that Sgt.
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Barton imposed additional sanctions, which are not specifically
described in Mr. Doiron’s complaint. 	Mr. Doiron asserts that at
the time of the hearing, Sgt. Barton told him that those
unspecified sanctions were suspended, but after the hearing,
Sgt. Barton imposed those sanctions without notice to Mr. Doiron
or further hearing.
Mr. Doiron appealed the results of the disciplinary hearing
to Sgt. Barton, asking him to reverse both his guilty findings
and the sanctions imposed. 	When that was unsuccessful, Mr.
Doiron filed administrative appeals, first to NHSP Warden
Michelle Edmark and then to the office of the DOC Commissioner.
All of his appeals were denied.
After the disciplinary hearing, Lt. Brown initiated
proceedings to have Mr. Doiron’s classification level upgraded
to a higher security status. 	Mr. Doiron’s classification
upgrade hearing was held on April 14, 2021. 	At that hearing,
his classification status was upgraded from medium custody to C-
4 security status.
Mr. Doiron alleges that throughout the disciplinary and
classification proceedings against him, Lt. Brown, Sgt. Barton,
Warden Edmark, and the DOC Commissioner’s designee, Chris Kench,
subjected him to a number of due process violations. 	Mr. Doiron
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also states that the defendants’ actions underlying the claims
in this case violated the prison’s own policies.
Discussion
I. 	Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” 	Glossip v. Gross,
576 U.S. 863, 876 (2015) (citation omitted). 	The likelihood of
success and irreparable harm are the factors that weigh most
heavily in the analysis. 	See Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008); Shurtleff v. City of Bos., 928 F.3d
166, 171 (1st Cir. 2019); Voice of the Arab World, Inc. v. MDTV
Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011). 	The
burden of proof is on the movant. 	See Esso Std. Oil Co. v.
Monroig–Zayas, 445 F.3d 13, 18 (1st Cir. 2006).
II. 	Likelihood of Success on the Merits
As a prerequisite to obtaining injunctive relief, a movant
must demonstrate that he will likely prevail on the merits of
his underlying claims. 	See Glossip, 576 U.S. at 876; W. Auto
Supply Co. v. Savage Arms (In re Savage Indus.), 43 F.3d 714,
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719 n.8 (1st Cir. 1994). 	Mr. Doiron’s claims alleging
procedural due process violations are the claims relevant to his
request for injunctive relief. 	As fully explained in the Order
issued simultaneously with this R&R (“Simultaneous Order”), Mr.
Doiron’s due process claims, identified in the Simultaneous
Order as Claims 1(a) – 1(aa), have not yet been sufficiently
stated to state a claim upon which relief might be granted. 	Mr.
Doiron has thus failed, at this time, to assert facts
demonstrating that he is likely to succeed on the merits of
those claims.
III. Irreparable Harm
A. 	Irreparable Harm Standard
“‘[P]erhaps the single most important prerequisite for the
issuance of a preliminary injunction is a demonstration that if
it is not granted the applicant is likely to suffer irreparable
harm before a decision on the merits can be rendered.’” 	Voice
of the Arab World, 645 F.3d at 32 (quoting 11A C. Wright, A.
Miller & M. Kane, Federal Practice & Procedure § 2948, at 129
(2d ed. 1995)). 	“A finding of irreparable harm must be grounded
on something more than conjecture, surmise, or a party’s
unsubstantiated fears of what the future may have in store.”
Charlesbank Equity Fund II, Ltd. P’ship v. Blinds To Go, Inc.,
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370 F.3d 151, 162 (1st Cir. 2004).
B. 	Earned Time Credit
Mr. Doiron asserts that absent issuance of the injunction
he has requested, he will lose the ability to receive 120 days
of earned time credit (against both his minimum and maximum
sentences) that he would have received if his transfer to the
SHU had not prevented him from finishing two classes. 	“The
purpose of a preliminary injunction is to preserve the status
quo, freezing an existing situation so as to permit the trial
court, upon full adjudication of the case's merits, more
effectively to remedy discerned wrongs.” 	CMM Cable Rep., Inc.
v. Ocean Coast Props., Inc., 48 F.3d 618, 620 (1st Cir. 1995).
Mr. Doiron asks the court to issue a “mandatory preliminary
injunction, which requires affirmative action by the non-moving
party.” 	Braintree Labs., Inc. v. Citigroup Glob. Mkts., Inc.,
622 F.3d 36, 40-41 (1st Cir. 2010). 	“Because a mandatory
preliminary injunction alters rather than preserves the status
quo, it ‘normally should be granted only in those circumstances
when the exigencies of the situation demand such relief.’” 	Id.
at 41 (citation omitted). 	“Because [mandatory] injunctions are
‘disfavor[ed],’ the moving party must make an even stronger
showing of entitlement to relief than is typically required.”
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La Simple Co, Ltd. v. SLP Enters., LLC, 2021 U.S. Dist. LEXIS
81209, at *10-*11, 2021 WL 1648762, at *4 (D. Mass. Apr. 27,
2021) (quoting Lewis v. Gen. Elec. Co., 37 F. Supp. 2d 55, 62
(D. Mass. 1999)).
Mr. Doiron has not demonstrated that, absent his transfer
to the SHU and placement on PAR status, he would have
successfully finished “Thinking for a Change,” and the anger
management class for which he was waitlisted at the time of that
transfer. 	In effect, Mr. Doiron asks the court to put him in a
better position than he would be in had the defendants not
prevented him from finishing those classes, as he asks the court
to order that he receive earned time credit although he has not
satisfied the requirements for such credit. 	However confidently
stated, Mr. Doiron’s claim of irreparable harm consisting of the
loss of earned time credit is based only on his speculation that
he would have finished those programs successfully and become
entitled to earned time credit. 	Such speculation does not
provide grounds for granting preliminary injunctive relief.
C. 	Impact on Expected Parole Date
Mr. Doiron further asserts that he will suffer irreparable
harm, in that his guilty disciplinary finding and classification
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upgrade will slow his progression through the prison’s security
classification system and cause him to be released on parole
later than he otherwise would. 	In support of these assertions,
Mr. Doiron states that he was scheduled to plead guilty to a
criminal charge on May 28, 2021 and expected to receive a 1 – 5
year prison sentence for that offense. 	Mr. Doiron claims that
without the guilty disciplinary finding and classification
upgrade challenged in this case, he would be able to proceed to
minimum security and then to a halfway house less than eight
months after the imposition of that new sentence. 	Otherwise,
Mr. Doiron asserts, he would not be able to obtain minimum
security status or a community corrections placement until eight
to nine months into his new sentence, which would mean he would
remain incarcerated on that sentence beyond his minimum parole
date.
Assuming that Mr. Doiron was in fact sentenced as expected
on May 28, 2021, he has failed to demonstrate more than
conjecture as to when he would be released from incarceration on
the sentence he was already serving on May 28, 2021, if not for
the April 2021 disciplinary finding and classification upgrade.
Mr. Doiron’s further assertion that, absent the disciplinary
finding and classification upgrade he would be released from his
1 – 5 year sentence at his minimum parole date, is equally
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speculative. 	Conjecture and surmise regarding uncertain future
events does not provide a basis for this court’s finding of
irreparable harm. 	See id.
For these reasons, Mr. Doiron cannot show that, without the
requested injunction, he will suffer imminent, nonspeculative,
irreparable harm. 	Accordingly, the district judge should deny
Mr. Doiron’s motion for a preliminary injunction, without
prejudice to his ability to again seek such relief should
circumstances warrant in the future.
Conclusion
For the foregoing reasons, the district judge should deny
Mr. Doiron’s motion for preliminary injunctive relief (Doc. No.
2) without prejudice. 	Any objections to this R&R 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 specific written objections 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).
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__________________________
Andrea K. Johnstone
United States Magistrate Judge
June 8, 2021
cc: Arthur Doiron, pro se
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