Beaulieu v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Beaulieu,
a/k/a Crystal Beaulieu
v. 	Case No. 14-cv-280-SM
John P. Aulis, Aaron M. Belanger,
Edward P. Kirrane, Dominic M. Salce,
Michael Shepley, Paul Laflamme,
Kevin Washburn, Jason Whitney,
Scott Collier, and Rueben James Ruiter
REPORT AND RECOMMENDATION
The court held an evidentiary hearing on March 14, 2019 to
assess whether Rueben James Ruiter (a/k/a Rueben Bushnell)
(“Bushnell”) should be ordered to make periodic payments on the
$10,300.00 default judgment he owes to plaintiff Christopher
(a/k/a Crystal) Beaulieu, pursuant to N.H. Rev. Stat. Ann.
(“RSA”) § 524:6-a and Fed. R. Civ. P. 69. 	See generally Jan.
28, 2019 Order (Doc. No. 134). 	Beaulieu and Bushnell both
appeared pro se at the evidentiary hearing.
Bushnell testified under oath and was examined by both
Beaulieu and the court regarding his property and sources of
income. 	The court had before it financial records relating to
Bushnell’s inmate account filed under seal at Level II by the
New Hampshire Department of Corrections (“DOC”), see Doc. No.
143, which this court used in examining Bushnell.
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Standard
N.H. Rev. Stat. Ann. (“RSA”) § 524:6-a, I, provides this
court with discretion to order a judgment debtor to make
periodic payments from non-exempt property and income to satisfy
the judgment and cost of the proceedings, “after allowing the
debtor an appropriate amount for his or her support and that of
the debtor’s family.” 	N.H. Super. Ct. R. 51(g).
The court may prescribe the times, places, amount of
payments and other details in making any of its orders.
The court may at any time review, revise, modify, suspend
or revoke any order made. 	Failure to obey any lawful order
of the court, without just excuse, shall constitute a
contempt of court.
N.H. Super. Ct. R. 51(h).
If the court finds that “the debtor has no property other
than property that is exempt from attachment or execution and
that the debtor is unable to make weekly payments on the
judgment,” the request for periodic payments will be denied.
N.H. Super. Ct. R. 51(f). 	The judgment creditor bears the
burden of proof relevant to the identification of non-exempt
property and the debtor’s ability to pay. 	See Key Bank v.
Latshaw, 137 N.H. 665, 674, 633 A.2d 952, 958 (1993); see also
N.H. Cir. Ct.-Dist. Div. R. 4.10(d) (plaintiff bears burden “to
establish that the defendant has the ability to pay the judgment
from non-exempt assets either in full or in installments”).
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Personal and Employment History
Bushnell is thirty-two. 	He is divorced and has a minor
son, but he does not presently have custody of his son and does
not at this time provide financial support for his son or ex-
wife.
Bushnell is an inmate at the Northern New Hampshire
Correctional Facility (“NCF”) who has been in and out of prison
at times in the last ten years. 	Although the maximum term of
Bushnell’s current sentence is set to expire in February 2022,
he becomes eligible for parole in August 2019, see DOC Online
Inmate Locator, https://business.nh.gov/inmate_locator/.
Bushnell said he anticipates he may be paroled at that time.
Bushnell was named as a defendant in this case on a tort
claim for assaulting Beaulieu while they were both incarcerated
in January 2012. 	Bushnell did not file an appearance in this
case before the court ruled that he was liable for a $10,300.00
default judgment on that claim. 	See Apr. 14, 2017 Order (Doc.
No. 100) (approving Mar. 2, 2017 R&R (Doc. No. 98)). 	In the
March 14, 2019 hearing on Beaulieu’s request for periodic
payments on that judgment, Bushnell denied having taken any
steps intending to conceal his whereabouts to avoid paying the
judgment owed to Beaulieu in this case.
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Bushnell’s last nonprison job, which ended approximately
three years ago, was at a lumber mill, earning $12.00 per hour.
Bushnell testified that he thinks he could get that job again
when he is released. 	Bushnell has also worked as a self-
employed construction contractor and hopes to resume that work
if he is able to earn and save enough money.
Property and Current Income
Bushnell testified that he does not own a house or any
land, and he has no savings, bank accounts, or other non-exempt
property. 	He stated that he sold a pick-up truck more than a
year ago, but the buyer never paid him the $500.00 agreed-upon
sale price. 	Bushnell has not sold any other property in the
last three years.
Bushnell does not presently have a prison job. 	He receives
$5.00 each week in the form of inmate base pay, which is subject
to automatic deductions. 	See Certificate of Custodial Inst.,
Doc. No. 143. 	Bushnell testified that he does not generally
receive deposits from outside sources.
With the exception of five separate deposits from two
sources totaling $195.00 made in October/November 2018,
Bushnell’s six-month inmate account statement, Doc. No. 143,
does not show that he received any deposits from outside sources
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during that period. 	Bushnell explained that $20.00 of the funds
deposited to his account in November 2018 just prior to his
transfer to NCF came from a friend who has occasionally given
him money; there is no evidence that Bushnell received any other
deposits from that individual in the six months that ended in
late January 2019. 	The remaining four deposits in October 2018,
totaling $175.00, came from a different person, identified by
Bushnell as another inmate’s girlfriend. 	Bushnell testified
that he received those deposits for the benefit of that other
inmate; Bushnell then used the funds to make canteen purchases
for that other inmate in October 2018. 	Bushnell said that he
agreed to that arrangement to allow the other inmate to avoid
automatic deductions that would have been applied to those funds
if they had been deposited directly to that other inmate’s
account. 	DOC financial records for Bushnell, reflecting
deposits made by that individual in October 2018 followed by
Bushnell’s canteen purchases, are consistent with Bushnell’s
testimony. 	See Doc. No. 143.
Expenses
Bushnell testified that he owes $4,000.00 in court-ordered
restitution along with a fine that he said totaled $250.00.
Bushnell’s inmate account statement shows that for each week of
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the six-month period beginning in July 2018, 10% of each deposit
(amounting to $0.50 of each $5.00 credit for Bushnell’s inmate
pay) was automatically withdrawn from his inmate account to pay
court-ordered restitution. 	See Doc. No. 143. 	Bushnell
explained that he also owes the DOC a fine as a result of
November 2018 disciplinary proceedings. 	The evidence before
this court suggests that a disciplinary fine assessed against
him beginning in November 2018 exceeds $250.00, as 50% ($2.50)
of Bushnell’s weekly pay was automatically withdrawn from his
inmate account each week for each of the last eleven weeks of
the period ending in late January 2019 for which there is
evidence in the record, see Doc. No. 143. 	At the March 14, 2019
hearing, Bushnell testified he was currently receiving only half
of his weekly inmate pay after withdrawals for his institutional
obligations and court-ordered restitution.
Prior to October 2018, Bushnell made monthly canteen
purchases exceeding $19.00 each month. 	Bushnell cut his canteen
purchases down to about $8.00 per month after his available
income dropped to $2.00 each week. 	See Doc. No. 143. 	Bushnell
testified that some of his canteen purchases are for hygiene
products, which the DOC does not provide to inmates. 	Although
inmates are generally required to pay $3.00 for each inmate-
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initiated, non-emergency dental or medical visit,1 there is no
record of Bushnell incurring any such co-pays from late July
2018 until late January 2019, see Doc. No. 143.
Discussion
Bushnell’s testimony in general and, in particular,
regarding his present lack of bank accounts, lack of property
ownership, and lack of regular, reliable sources of outside
income, was credible. 	Bushnell’s description of his current
institutional income and debts was also credible and generally
consistent with the financial records produced by the DOC.
Bushnell, who maintained a monthly inmate account balance of
less than $2.00 per month over the six months starting in late
July 2018, received only $2.00 per week through the end of
January 2019. 	Bushnell’s obligation to pay assessments
amounting to 50% of the money deposited to his account as inmate
pay appears to have continued up to the date of the March 14,
2019 hearing, as Bushnell testified that he received only $2.50
per week after such deductions were made. 	An unspecified
portion of the income Bushnell actually receives each week is
necessarily used at times to pay for self-care items that
1See Health Care Co-Pay, DOC Policy and Proc. Directive 6.16
(Apr. 1, 2008), https://www.nh.gov/nhdoc/policies/documents/6-
16.pdf (last accessed May 2, 2019).
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inmates do not receive free of charge. 	Such personal expenses
may equal or exceed Bushnell’s weekly pay on some occasions.
Bushnell does not have any property, savings, or regular,
reliable income streams from outside sources at this time.
There is no evidence upon which this court could base a
finding that Bushnell will receive a substantial increase in pay
or a marked reduction in his weekly obligations in the
foreseeable future. 	The speculative nature of the evidence
regarding Bushnell’s parole prospects and outside job
opportunities, and the absence of evidence regarding how much
income Bushnell would need to cover his expenses upon his
release, taken together, preclude this court from finding that
Bushnell could pay any part of the judgment if he were paroled.
The evidence in the record indicates that Bushnell has
neither the property, nor an ability to pay any substantial
portion of his inmate income, either in a lump sum or in
installments, towards the judgment owed to Beaulieu, while he
remains subject to his current financial and personal
constraints. 	In accordance with the pertinent requirements of
state law, see, e.g., N.H. Super. Ct. R. 51, the request for a
periodic payment order is properly dismissed. 	An Order
approving this Report and Recommendation should issue without
prejudice to Beaulieu’s ability to file a future petition for
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periodic payments on the judgment in a court of competent
jurisdiction, no sooner than one year from the date of that
Order, unless there is good cause for an earlier filing, if
there is evidence that a substantial change in Bushnell’s
circumstances would allow for payments to be made on the
judgment. 	See generally N.H. Super. Ct. R. 51.2
Conclusion
For the foregoing reasons, the district judge should
dismiss the request for an order requiring Bushnell to pay any
amount towards the judgment owed to Beaulieu in this case,
without prejudice to Beaulieu’s ability to file a new petition
for such periodic payments in a court of competent jurisdiction
no sooner than one year from the date of the Order on this
Report and Recommendation (or sooner if accompanied by a motion
showing good cause).
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 extended
upon motion. 	Failure to file objections within the specified
2If a request for periodic payments is dismissed, the
judgment creditor “shall not file within one year after the date
of such dismissal another motion against the same debtor upon
the same judgment unless the court otherwise for good cause
orders.” 	N.H. Super. Ct. R. 51(j).
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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
May 6, 2019
cc: 	Christopher (Crystal) Beaulieu, pro se
Laura E.B. Lombardi, Esq.
Rueben James (Ruiter) Bushnell, pro se
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