Heath v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Anthony K. Heath
v. Civil No. 18-cv-624-JD
Opinion No. 2019 DNH 212
Helen E. Hanks, Commissioner,
New Hampshire Department of
Corrections, et al.
O R D E R
Anthony K. Heath brought this action against Helen Hanks,
Commissioner of the New Hampshire Department of Corrections;
Deborah Robinson, Administrator of the Secure Psychiatric Unit
(“SPU”) at the New Hampshire State Prison; Jeffrey Meyers,
Commissioner of the New Hampshire Department of Health and Human
Services; Alexander de Nesnara, M.D., Chief Medical Officer at
the New Hampshire Hospital (“NHH”); and Robert MacLeod, former
Chief Executive Officer at the NHH. Heath brings his suit
against all the defendants in both their individual and official
capacities. There are three counts in Heath’s Amended
Complaint: two for violations of Heath’s procedural due process
rights (Counts I and II) and one for a violation of the
Americans with Disabilities Act (“ADA”, Count III).
The defendants move to dismiss the Amended Complaint. Doc.
25. Heath opposes dismissal.
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Standard of Review
In considering a motion to dismiss, the court asks whether
the plaintiff has made allegations that are sufficient to render
his entitlement to relief plausible. Manning v. Boston Med.
Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). The court accepts
all well-pleaded facts as true and draws all reasonable
inferences in the non-moving party’s favor. Hamann v.
Carpenter, 937 F.3d 86, 88 (1st Cir. 2019). The court
disregards conclusory allegations that simply parrot the
applicable legal standard. Manning, 725 F.3d at 43. To
determine whether a complaint survives a motion to dismiss, the
court should use its “judicial experience and common sense,” but
should also avoid disregarding a factual allegation merely
because actual proof of the alleged facts is improbable. Id.
Background
On August 21, 2015, Heath was indicted for second-degree
assault and for operating a motor vehicle after being certified
as a habitual offender. On January 15, 2016, Heath was indicted
for first-degree assault and first-degree assault with a deadly
weapon. On March 3, 2016, the Coos County Superior Court found
that Heath was not competent to stand trial, and it found by
clear and convincing evidence that there was no reasonable
likelihood that Heath could be restored to competency through
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appropriate treatment within twelve months. The superior court
dismissed the indictments against Heath without prejudice, but
it found that the state had shown that Heath was dangerous to
others. The court ordered Heath to remain in custody for ninety
days to be evaluated for involuntary treatment.
After a hearing on March 29, 2016, the First Circuit Court
Probate Division in Lancaster admitted Heath to the NHH on an
involuntary basis for a period not to exceed five years and a
conditional discharge as soon as clinically appropriate.
Pursuant to the Probate Court’s order, Heath was admitted to the
NHH on April 4, 2016.
On April 14, 2016, however, MacLeod, who was then Chief
Executive Officer of the NHH, ordered Heath to be transferred to
the SPU, which is located at the New Hampshire State Prison.
Commissioner Meyers approved the transfer, and Heath was
transferred to the SPU on April 22, 2016.
Under RSA 622:45, after MacLeod’s transfer order, Heath was
placed in the care and custody of the Commissioner of the New
Hampshire Department of Corrections (who is now Commissioner
Hanks) and the medical unit director. According to Heath’s
allegations, the SPU is a prison-like environment, with prison-
like restrictions. By contrast, the NHH is a hospital-like
environment.
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Nearly a year later, on April 7, 2017, Deborah Robinson,
Administrator of the SPU, requested that the NHH evaluate Heath
for a transfer back to the NHH as a less restrictive alternative
to the SPU. Dr. de Nesnara, the NHH Chief Medical Officer,
denied the request on September 20, 2017, and Heath was left in
the SPU.
Heath began this action in July 2018, and he filed a
three-count Amended Complaint in September 2019. In Count I,
Heath alleges that the defendants transferred him to the SPU –
and refused his request to be transferred back to the NHH –
through a procedure containing insufficient due process, in
violation of the Fifth and Fourteenth Amendments. Heath also
alleges that the defendants failed to follow the procedures they
had in place for transfers between the NHH and the SPU. Count I
is brought against the defendants in their official capacities.
In Count II, Heath alleges the same violations as Count I but
against the defendants in their individual capacities.
In Count III, Heath alleges that the defendants violated
Title II of the ADA by utilizing criteria or methods of
administration that have the effect of subjecting qualified
individuals with disabilities to discrimination on the basis of
disability. Heath alleges that the defendants incarcerated him
at the SPU rather than keeping him at the NHH based on the
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nature of his disability. Heath also asserts that the
defendants violated the ADA when they did not provide him with
treatment in the “least restrictive environment necessary to
achieve the purposes of treatment.” Doc. 17 ¶ 56.
In his Amended Complaint, Heath seeks injunctive relief and
damages for all of his claims. As to injunctive relief, Heath
requests “[a]n order for his release from the Secure Psychiatric
Unit, so that he may receive treatment in the least restrictive
environment necessary to achieve the purposes of treatment
either at the New Hampshire Hospital or, alternatively, from
community-based mental health services.” Doc. 17 at 7. He also
requests declarations that his rights were violated under the
federal constitution and the ADA.
In August 2018, Heath’s then-guardian filed in this court
a pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. Heath v. Hanks, et al., Case No. 18-cv-693-JL (D.N.H.),
ECF doc. 1. In May 2019, Heath, represented by counsel,1 filed
an “Amended Petition For Habeas Corpus Relief,” which also
appears to assert an entitlement to relief under 28 U.S.C.
§ 2254. Id., doc. 8 at 2. Heath’s habeas petition is currently
1 The same counsel represents Heath in this case and in his
habeas corpus petition.
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stayed pending the exhaustion of any state remedies. Id.,
September 10, 2019, Order Granting Motion to Stay.
Discussion
The defendants argue that Heath’s claims in this case for
injunctive relief are barred under Preiser v. Rodriguez, 411
U.S. 475 (1973), and that Heath’s claims for damages are barred
under Heck v. Humphrey, 512 U.S. 477 (1994). The defendants
also contend that Heath has failed to state claims of procedural
due process or ADA violations. Heath responds that his claims
are not barred and that his Amended Complaint states facts that
are sufficient to state claims for relief.
A. Preiser v. Rodriguez
Under Preiser, persons in state custody cannot bring a
§ 1983 civil rights action to challenge the fact or duration of
their confinement. Gonzalez-Fuentes v. Molina, 607 F.3d 864,
873 (1st Cir. 2010) (citing Wilkinson v. Dotson, 544 U.S. 74, 78
(2005)). Rather, such persons, including those who are civilly
committed, must use the appropriate habeas remedy, either 28
U.S.C. § 2241 or § 2254. Preiser, 411 U.S. at 489; see Duncan
v. Walker, 533 U.S. 167, 176 (2001). On the other hand, a
prisoner may challenge the “conditions” of his confinement
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through § 1983. Wilkinson, 544 U.S. at 84 (“[T]his Court has
repeatedly permitted prisoners to bring § 1983 actions
challenging the conditions of their confinement . . . .”). The
defendants’ motion to dismiss presents the question of whether,
in his Amended Complaint, Heath challenges the fact or duration
of his confinement or the conditions of his confinement.
The defendants contend that, because Heath seeks an order
releasing him from his confinement at the SPU, Heath must bring
his claims for injunctive relief through a habeas corpus
petition. Heath responds that he does not seek an abridgement
of his civil commitment and that he does not attack the Probate
Court’s underlying order confining him to the state’s custody.
Rather, Heath argues, he seeks only a change in the conditions
of his confinement to the least restrictive environment
necessary to achieve the purposes of treatment.
At first glance, Heath does not appear to raise a challenge
to the fact or duration of his confinement because he does not
seek to void the Probate Court’s underlying order of commitment.
In his Amended Complaint, however, Heath asks the court to undo
the state’s prior administrative order confining him in the SPU,
specifically requesting that the court issue an order releasing
him from the SPU and placing him in the “least restrictive
environment necessary to achieve the purposes of treatment.”
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Doc. 17 at 7. In his opposition to the defendants’ motion to
dismiss, Heath reiterates this point: “The injunctive relief
Heath seeks in this case (and also in the pending habeas
petition) is his immediate transfer to a less restrictive
environment for his mental health treatment.” Doc. 27-1 at 5,
11.
Therefore, the court considers whether a claim requesting
release from the SPU and a transfer to a less restrictive
environment, but not release from state custody entirely, is a
claim challenging the fact or duration of confinement or a claim
challenging the conditions of confinement. The First Circuit
has recognized that, when applying Preiser, there is a
“difficult intermediate” area where a person in custody seeks
“neither a change in conditions nor an earlier release, but
rather a less restrictive form of custody.” Gonzalez-Fuentes,
607 F.3d at 873 (citing Graham v. Broglin, 922 F.2d 379, 381
(7th Cir. 1991)).2 Under Gonzalez-Fuentes, the court asks
2 The Seventh Circuit elaborated on the “difficult
intermediate” cases:
The difficult intermediate case is where the prisoner
is seeking not earlier freedom, but transfer from a
more to a less restrictive form of custody. We know
that if a prisoner claims to be entitled to probation
or bond or parole, his proper route is habeas corpus,
even though he is seeking something less than complete
freedom. What if, as here, he is seeking work
release, which involves less confinement than ordinary
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whether the relief sought “can be fairly described as a quantum
change in the level of custody.” 607 F.3d at 873 (quoting
Graham, 922 F.2d at 381). The plaintiff’s remedies for
injunctive relief are limited to habeas if the plaintiff seeks a
“quantum change.” Id.
The court finds that Heath seeks a “quantum change in the
level of custody.” Heath asks the court for a transfer from a
highly restricted prison-like environment under the care and
custody of the Department of Corrections, RSA 622:45, IV,3 to a
hospital-like environment under the care and custody of the NHH,
RSA 135-C:26, I. If the court granted the relief sought by
Heath, he would remain in the state’s custody but the
fundamental nature of his confinement would change considerably.
Therefore, under the applicable standard, Heath’s claims for
imprisonment because, as the term implies, it allows
him to be outside the prison during working hours? Or
what if he were seeking to be confined in his home
rather than in a prison?
Graham, 922 F.2d at 380–81 (citations omitted).
3 “Any person admitted or transferred to the unit shall be
under the care and custody of the commissioner and the medical
unit director and shall be subject to the rules of the
commissioner until the person is transferred to a receiving
facility in the state mental health services system.” RSA
622:45, IV; doc. 25-1 at 2 (Article 1.3).
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injunctive relief must be brought through his petition for
habeas corpus. See Gonzalez-Fuentes, 607 F.3d at 873.
The court notes the similarity between this case and Garcia
v. Spaulding, 324 F. Supp. 3d 228, 234 (D. Mass. 2018). In that
case, the plaintiff, Garcia, was civilly committed under 18
U.S.C. § 4245,4 and the federal government held him in custody at
the Mental Health Unit (“MHU”) at FMC Devens in Massachusetts.
324 F. Supp. 3d at 230. Like the SPU at the New Hampshire State
Prison, the MHU at FMC Devens is, in fact, a prison. See id.
The MHU required civilly-committed patients such as Garcia “to
wear prison-issue clothing, subject[ed] them to the prison
curfew, and include[d] them in the same mandatory counts and
random cell searches as general population inmates.” Id.
Similarly, here, Heath “is subject to the same restrictions as
an inmate at the New Hampshire State Prison, including limited
visitations, recorded calls, and screened mail.” Doc. 17 ¶ 28.
Like Heath in this case, Garcia did not dispute the court
order underlying his civil commitment but alleged that FMC
Devens was not an appropriate place for his treatment. Garcia,
4 Originally, Garcia was held in federal prison after
receiving a sentence for a federal crime. 324 F. Supp. 3d at
230. A federal court ordered Garcia to be civilly committed
while he served his criminal sentence. Id. Under § 4245,
however, the duration of Garcia’s civil commitment was extended
beyond the expiration of his criminal sentence. Id.
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324 F. Supp. 3d at 231. Garcia filed a pro se complaint in
federal court requesting “placement in the least restrictive
setting appropriate to his condition.” Id. at 233. The
district court found that Garcia’s complaint could be construed
as raising either a civil rights claim or a habeas claim. Id.
After examining Garcia’s complaint, the applicable case
law, and applying the “quantum change” standard, the district
court concluded that a civil rights claim5 was not appropriate.
Id. The district court found that Garcia “does not simply seek
transfer for the sake of a new location or to improve his
particular conditions,” which would not be a quantum change in
his level of custody, “but rather to change his level of
confinement fundamentally from prison to a hospital facility.”
Id. at 234. Therefore, a civil rights action was not an
appropriate remedy. Id.
Similarly, here, neither § 1983 nor the ADA are appropriate
bases for Heath’s request that the court undo a prior state
administrative order confining him at the SPU. Heath seeks a
5 As Garcia’s claim involved federal officials, the court
examined whether the claim was appropriate under Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), rather than
§ 1983. See Garcia, 324 F. Supp. 3d at 231-32 & n.2. Garcia
favored a habeas petition under § 2241 while the federal
government took the position that a Bivens action, a § 2225
motion, or an action under 18 U.S.C. § 4246, the federal civil
commitment statue, would be more appropriate. Id. at 231-32.
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quantum change in the level of his confinement because he seeks
to shift his confinement fundamentally from prison – the SPU –
to a hospital facility – the NHH. See id. Because he seeks a
quantum change in the level of his confinement, a § 1983 claim
is not the appropriate method for pursuing injunctive relief
when a habeas claim is available. See Gonzalez-Fuentes, 607
F.3d at 873-74; Garcia, 324 F. Supp. 3d at 234. Nor is the ADA
appropriate. See Beam v. Madigan, No. 16-cv-1211-MJR, 2017 WL
679950, at *6 (S.D. Ill. Feb. 21, 2017) (applying Preiser to ADA
claims).6 Therefore, Heath’s claims for injunctive relief under
§ 1983 and the ADA are dismissed.7
B. Heck v. Humphrey
Under Heck, “when a person convicted of a crime files a
§ 1983 claim seeking damages for an ‘allegedly unconstitutional
6 Heath did not present an argument in response to the
defendants’ assertion that Preiser, when otherwise applicable,
bars claims under the ADA as well as claims brought through
§ 1983.
7 As noted, Heath has already filed claims under 28 U.S.C.
§§ 2241 and 2254 in a separate case. While the court in Garcia
found that a § 2241 challenge to the execution of a sentence was
more appropriate than a § 2255 challenge to the validity of the
sentence, the court here only determines that § 1983 is not the
appropriate way to proceed given the availability of habeas
relief. The court does not express any opinion about whether
§ 2241 or § 2254 is more appropriate for Heath’s case.
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conviction’ or for ‘other harm,’ the district court ‘must
consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence;
if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has
already been invalidated.’” O’Brien v. Town of Bellingham, 943
F.3d 514, 528-29 (1st Cir. 2019) (quoting Heck, 512 U.S. at 486-
87).8 The defendants argue that Heck bars Heath’s claims for
damages because success on the claims would necessarily imply
that Heath’s confinement at the SPU is unlawful. Therefore, the
defendants contend, Heath cannot bring damages claims until he
demonstrates that his confinement at the SPU is unlawful through
the habeas procedure.
As discussed above, Heath’s claims for injunctive relief
ordering his release from the SPU must proceed through a habeas
petition because success means undoing the state’s prior
administrative order and releasing him from confinement at the
SPU rather than changing the conditions of confinement. Success
on the merits of those claims would mean that Heath has been
8 Heath did not make an argument opposing the defendants’
assertion that Heck extends to invalidations of civil commitment
orders and to claims under the ADA. See doc. 27-1 at 6-7; Banda
v. Adams, 674 Fed. Appx. 181, at *183 (3d Cir. Jan. 9, 2017)
(applying Heck to civil commitment orders); Beam, 2017 WL
679950, at *6 (applying Heck to ADA claims).
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held at the SPU unlawfully. Therefore, Heck prohibits the court
from proceeding with Heath’s damages claims unless and until he
can show that his detention in the SPU is unlawful.
Conclusion
For the foregoing reasons, the defendants’ motion to
dismiss (doc. no. 25) is granted. Heath’s Amended Complaint is
dismissed, and the Clerk of Court is directed to close the case.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
December 19, 2019
cc: Counsel of Record.
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