John R. Griffin, Jr. v. New Hampshire Department of Corrections

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0543, John R. Griffin, Jr. v. New
Hampshire Department of Corrections, the court on June 13,
2019, issued the following order:

Having considered the briefs 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, John R. Griffin, Jr., appeals an order of the Superior Court
(Kissinger, J.) dismissing his complaint against the defendant, the New
Hampshire Department of Corrections (department), for failure to state a claim
upon which relief may be granted. We construe his brief to argue that the trial
court erred by ruling that his complaint did not state cognizable claims for
declaratory relief that the department’s enforcement of an “unwritten rule”
violated the Administrative Procedure Act (APA), see RSA ch. 541-A (2007 &
Supp. 2018), and his federal constitutional right to due process.

In reviewing an order granting a motion to dismiss, we assume the well-
pleaded allegations of fact in the complaint to be true, and draw all reasonable
inferences from those facts in the plaintiff’s favor. Estate of Mortner v.
Thompson, 170 N.H. 625, 631 (2018). We also consider documents attached to
the pleadings, documents the authenticity of which the parties do not dispute,
official public records, and documents referred to in the complaint. Ojo v.
Lorenzo, 164 N.H. 717, 721 (2013). We do not, however, credit allegations in
the complaint that are merely conclusions of law. Mortner, 170 N.H. at 631.
We then engage in a threshold inquiry that tests the facts in the complaint
against the applicable law, and determine whether the allegations are
reasonably susceptible of a construction that would permit recovery. Id.

The record on appeal establishes that in March 2016, the plaintiff was
released on parole after having served the minimum portion of a New
Hampshire State Prison sentence. In June 2016, he was recommitted to the
state prison for a period of six months for certain violations of the conditions of
his parole. In November 2016, the plaintiff was again granted parole,
conditioned upon approval of a housing plan. The plaintiff was unable to
secure approved housing, however, and beginning in 2017, he directed several
communications to representatives of the department seeking to be transferred
to a “halfway house.” In response, department representatives notified the
plaintiff that, because he was a “parole violator,” he was not eligible to have his
custody level classification, see N.H. Admin. R., Cor 403.03(b) (setting forth five
custody levels for persons under department control), reduced to a level that
would allow his placement in a halfway house. A department representative
admitted, however, that there was no administrative rule specifically
prohibiting placement of a parole violator in a halfway house.

Nevertheless, on June 29, 2017, the department changed the plaintiff’s
custody level classification from “C-3,” which required him to “live[], work[],
recreate[], and participate[] in treatment with the general population of a
departmental facility,” to “C-2,” a classification allowing him to work in the
community. Id., Cor 403.03(b)(2)&(3). The plaintiff was then housed in the
Concord Transitional Work Center. On November 2, 2017, the department
again changed his custody level classification to “C-1,” allowing him to “work,
recreate, and receive treatment in the community.” Id., Cor 403.03(b)(1). He
was then moved to the North End Transitional Halfway House.

On December 20, 2017, the plaintiff failed to return to the halfway house
when he was required to do so. He was subsequently placed on “escape”
status, apprehended, and returned to prison, and his custody level was raised
back to C-3. In the course of a disciplinary investigation by the department,
the plaintiff admitted his guilt to the offense, and in April 2018, a grand jury
returned an indictment charging him with escape, see RSA 642:6 (Supp. 2018).
The plaintiff subsequently filed the present action, seeking a declaratory
judgment pursuant to RSA 541-A:24 that the department violates the APA and
due process by enforcing unwritten rules, including an alleged unwritten rule
that parole violators are ineligible for reduced custody or a reduction in
custody level classification. The department moved to dismiss, arguing in part
that, pursuant to a published department rule, the plaintiff’s escape required
his return to prison and increase in custody level. See N.H. Admin. R., Cor
307.08(d) (providing that a person “who is placed in escape status at a
transitional housing unit shall upon return to custody be returned to prison
and not returned to the transitional housing unit, at least until the incident is
resolved”). The trial court granted the motion, and this appeal followed.

An administrative agency’s enforcement of a “rule” that has not been
properly promulgated pursuant to the APA may be challenged under RSA 541-
A:24, which provides, in relevant part:

The validity or applicability of a rule may be determined in
an action for declaratory judgment in the Merrimack county
superior court if it is alleged that the rule, or its threatened
application, interferes with or impairs, or threatens to interfere
with or impair, the legal rights or privileges of the plaintiff. . . .

RSA 541-A:24; see Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578,
586-87 (2000). Under this statute, the plaintiff is affirmatively obligated to
“prove that the rule, or its threatened application, interferes with or impairs, or

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threatens to interfere with or impair, his legal rights or privileges.” Asmussen,
145 N.H. at 587 (quotation omitted). If a plaintiff is not threatened with the
application of an allegedly unwritten rule, the plaintiff lacks standing to
challenge it under RSA 541-A:24. See id. at 588.

In this case, the only alleged rule that the plaintiff is challenging on
appeal is a purported rule “that parole violators cannot . . . move through the
classification system . . . [and] move to [a halfway] House.” Construed most
favorably to the plaintiff, however, the allegations in the complaint, the
documents attached to the pleadings, and the official public records establish
that: (1) notwithstanding his status as a parole violator, the department
ultimately placed the plaintiff in a halfway house; and (2) at the time of the
complaint, the department’s refusal to place the plaintiff in a halfway house
was based on the escape, not his status as a parole violator. The plaintiff has
not challenged the validity or applicability of N.H. Admin. R., Cor 307.08(d), the
rule that the department argues required his placement in prison. Nor has he
alleged any facts establishing that the department is presently refusing to place
him in a halfway house because he is a parole violator.

Under these circumstances, the plaintiff has not established that the
alleged rule he seeks to challenge interferes with or impairs, or threatens to
interfere with or impair, his legal rights or privileges. See Asmussen, 145 N.H.
at 588. Accordingly, we conclude that the plaintiff lacks standing to challenge
the validity of the alleged rule, either on constitutional grounds or on the basis
that it was not properly adopted under the APA, and that the trial court did not
err by granting the motion to dismiss. See id.; see also Town of Orford v. N.H.
Air Resources Comm., 128 N.H. 539, 541-42 (1986).

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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