Polansky v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Polansky
v. Civil No. 13-cv-458-JL
New Hampshire Department
of Corrections et al.1
REPORT AND RECOMMENDATION
Christopher Polansky, a former New Hampshire State Prison
(“NHSP”) inmate currently on parole, has sued: the New
Hampshire Department of Corrections (“DOC”); DOC Commissioner
William Wrenn; NHSP Warden Richard Gerry; a number of NHSP
health care providers; and several NHSP officers and employees,
claiming that they are liable to him for violating his federal
constitutional rights and for torts perpetrated while he was at
the NHSP. Before the court is Polansky’s motion for a
preliminary injunction (doc. no. 7), and his addendum to that
1In addition to the New Hampshire Department of Corrections
(“DOC”) and DOC Commissioner William Wrenn, plaintiff names the
following defendants in their individual and official
capacities: New Hampshire State Prison Warden Richard Gerry;
NHSP Maj. John Fouts; Jeff Fetter, M.D.; Celia Englander, M.D.;
John Eppolito, M.D.; Director of Rehabilitative Services
Bernadette Campbell; NHSP Director of Medical Services Helen
Hanks; Cindi Chapman, RN; Nurse Practitioner Lisa Savage; Nurse
Practitioner Corrina Niccolai; Nurse Nancy Clayman; Nurse Daniel
Cournoyer; Nurse Heidi Rule; NHSP Corrections Officer Steven
Isabelle; and Nurse Priscilla Dodge.
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motion (doc. no. 11).2 The district judge has referred the
motion (doc. no. 7) to the magistrate judge for issuance of
proposed findings of fact and a recommendation as to its
disposition. See Order (doc. no. 12).
Background
Polansky was a NHSP inmate when he filed the complaint, but
he has since been released. He obtained medical parole in
September 2013, and moved to the Glencliff Home on October 29,
2013. The Glencliff Home is a state-owned and operated long
term care facility, which is not part of the prison system.
Discussion
To obtain a preliminary injunction, a plaintiff 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.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
The burden of proof on a motion for preliminary injunction is on
the movant. See Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d
13, 18 (1st Cir. 2006).
2In a prior order (doc. no. 13), this court granted
Polansky’s motion (doc. no. 11) seeking to add an exhibit in
support of his preliminary injunction motion.
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In support of his motion for a preliminary injunction,
Polansky claims that inmates at the NHSP receive outdated,
unhealthy food, and do not receive sufficient healthy food.
Polansky seeks an order prohibiting the NHSP “from serving
expired, out-of-date, and/or tainted food,” and requiring DOC
Commissioner Wrenn “to raise the food budget so the
prisoners/staff are allowed to eat healthy, fresh, adequate,
appropriate, untainted, unexpired and proper nutritious food.”
Polansky’s motion should be denied because Polansky is no
longer an NHSP inmate. He lives and receives meals at the
Glencliff Home, a facility neither owned, nor operated, by the
NHSP or the DOC. Polansky has not shown that there is any
substantial likelihood that he will return to the NHSP and again
receive NHSP food. Polansky’s parole and release to the
Glencliff Home has thus mooted his claims for prospective
injunctive relief. See Nasious v. Colorado, 495 F. App’x 899,
903 (10th Cir. 2012) (“‘hypothetical possibility that [the
plaintiff], a former inmate on supervised release, will violate
the terms of that supervised release and be returned to the same
prison and same conditions of confinement cannot save an
otherwise moot claim for prospective injunctive relief relating
to prison conditions’” (citation omitted)). The motion for a
preliminary injunction should therefore be denied.
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Conclusion
For the reasons set forth above, the district judge should
deny the motion for a preliminary injunction (doc. no. 7). 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). Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Landya McCafferty
United States Magistrate Judge
November 13, 2013
cc: Christopher Polansky, pro se
LBM:nmd
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