Kerry Kidd v. Commissioner, New Hampshire Department of Corrections

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0052, Kerry Kidd v. Commissioner, New
Hampshire Department of Corrections, the court on September
18, 2017, issued the following order:

Having considered the brief, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). We affirm.

The plaintiff, Kerry Kidd, appeals the order of the Superior Court
(Bornstein, J.) dismissing his complaint against the defendant, the
Commissioner of the New Hampshire Department of Corrections (department),
as time-barred and for failure to state a claim upon which relief may be
granted.

The plaintiff is an inmate at the New Hampshire State Prison. Pursuant
to the prison’s internal disciplinary process, a hearing officer found him guilty,
following a hearing, of fighting with another inmate. The hearing officer
ordered the plaintiff to pay medical restitution in the amount of $713.38. In
September, 2011, the department started deducting 50 percent of all deposits
into the plaintiff’s prison account to satisfy the order. See RSA 622:31-a (2001)
(authorizing deductions from an inmate’s account for cost of medical treatment
for injuries inflicted on others).

On October 27, 2016, the plaintiff filed a complaint for injunctive relief,
alleging that the department’s deductions from his prison account without
court order violated his civil rights. The plaintiff sought a court order
prohibiting the department from making any further deductions and requiring
it to return money previously withdrawn.

On December 16, 2016, the trial court dismissed the complaint,
concluding that the action was time-barred and that the complaint failed to
state a claim upon which relief may be granted.

In reviewing the trial court’s order granting the department’s motion to
dismiss, our standard of review is whether the plaintiff’s allegations are
reasonably susceptible of a construction that would permit recovery. See
Estate of Ireland v. Worcester Ins. Co., 149 N.H. 656, 657-58 (2003). Although
we assume the truth of the facts alleged in the plaintiff’s pleadings and
construe all reasonable inferences in the light most favorable to him, we will
uphold the granting of the motion if the facts pleaded do not constitute a basis
for legal relief. See id. at 658.

The department asserts that the complaint is time-barred because it is
either an untimely-filed request for a writ of certiorari, see Wentworth-Douglass
Hosp. v. N.H. Dept. of Health & Welfare, 131 N.H. 364, 366 (1988), or a
complaint filed after the expiration of the statute of limitations, see Lamprey v.
Britton Constr., 163 N.H. 252, 257 (2012). The plaintiff alleges that his
complaint is timely under the “continuing wrong” doctrine. See Thorndike v.
Thorndike, 154 N.H. 443, 446-47 (2006). For purposes of this appeal, we will
assume, without deciding, that the complaint is not time-barred.

The plaintiff has failed to show that the department may not withdraw
from his account, without a court order, for the cost of medical treatment for
injuries inflicted on another inmate. He first argues that the department’s
deductions violate RSA 524:6-a (Supp. 2016). The department counters that
the issue is not preserved because the plaintiff failed to raise it in the trial
court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (parties
may not have judicial review of matters not raised in the trial court); see also In
the Matter of Birmingham & Birmingham, 154 N.H. 51, 56 (2006) (self-
represented litigants are bound by the same procedural rules that govern
parties represented by counsel). Assuming, without deciding, that the issue is
preserved, we find no error. RSA 524:6-a, entitled “Periodic Payment of
Judgments,” specifically applies to court judgments, not the department’s
internal disciplinary proceedings.

The plaintiff also argues that the department’s deductions violate RSA
511:2 (Supp. 2016), which exempts certain property from attachment and
execution. RSA chapter 511 applies to property that may be attached and held
as security for judgments. See RSA 511:1 (2010). Nothing in RSA chapter 511
supports the plaintiff’s position that the restitution order is a judgment, or that
the RSA 511:2 exemptions apply to deductions from an inmate’s account.

We conclude that the plaintiff has failed to state a claim upon which
relief may be granted. See Estate of Ireland, 149 N.H. at 658.

Affirmed.

Dalianis, C.J., and Hicks and Hantz Marconi, JJ., concurred.

Eileen Fox,
Clerk

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