Jason A. Czekalski v. Cheshire County & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0170, Jason A. Czekalski v. Cheshire
County & a., the court on September 30, 2019, issued the
following order:

Corrected Order
Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The plaintiff, Jason A. Czekalski, appeals orders of the Superior Court
(Ruoff, J.) entered in his litigation against the defendants, Cheshire County (the
County) and the superintendent of the Cheshire County House of Corrections
(CCHOC), Richard Van Wickler. We affirm.

The plaintiff, currently a state prison inmate, filed the instant action in
2016 regarding his alleged mistreatment in 2013, when he was a pretrial
detainee at CCHOC. His complaint, spanning more than 40 pages and
containing 65 claims, requests a jury trial and seeks monetary damages. The
complaint groups the plaintiff’s claims into four categories: (1) claims related to
his right to participate meaningfully in his defense and to have access to the
courts; (2) negligence-related claims; (3) intentional torts; and (4) claims related
to his right to religious freedom.

The defendants moved to dismiss the plaintiff’s claims in a series of
motions. The first motion, brought in 2017, sought dismissal of his claims for
monetary damages based upon alleged state constitutional violations. The
defendants argued that dismissal was warranted because “New Hampshire
does not recognize a cause of action for monetary damages for an alleged
violation of state constitutional precepts.” See, e.g., Khater v. Sullivan, 160
N.H. 372, 373-75 (2010) (declining to recognize a new constitutional tort
allowing a plaintiff to recover damages for a violation of the equal protection
guarantee under Part I, Article 12 of the State Constitution). The plaintiff
objected, urging the trial court to allow his constitutionally-based damages
claims because “New Hampshire has no statutory analog to 42 USC 1983, . . .
the New Hampshire Supreme Court has refused to create a state analog to
Bivens,” and an inmate’s “ability to pursue equitable relief is meaningless.”
Consistent with existing case law, the trial court granted the defendants’
motion to dismiss, leaving counts 17 (alleging that CCHOC charged exorbitant
fees for copying or printing), 19-21 (claims concerning inmate access to legal
supplies), 24 (alleging that CCHOC lacks a means by which inmates may mail
documents by certified mail or deliver documents to the county sheriff), 27-40
(claims concerning alleged “medical negligence” and “general negligence”
related to inmate beds, corporal punishment, and denying visitation to the
plaintiff’s agent), and 42-51 (alleging that CCHOC acted unlawfully because it
has an “absolute monopoly over inmates’ access to canteen [supplies] and
phone usage”) remaining. The plaintiff unsuccessfully moved for
reconsideration.

Thereafter, the defendants filed a second motion to dismiss, seeking
dismissal of the plaintiff’s remaining claims on the ground that they are barred
by RSA chapter 507-B. The defendants asserted that the County is entitled to
immunity pursuant to RSA 507-B:5, which provides that “[n]o governmental
unit shall be held liable in any action to recover for bodily injury, personal
injury, or property damage except as provided by this chapter or as is provided
or may be provided by other statute.” RSA 507-B:5 (2010). Although RSA 507-
B:2 creates an exception to governmental immunity, that exception “requires a
nexus between the claim and the governmental unit’s ownership, occupation,
or operation of the physical premises,” Lamb v. Shaker Reg’l Sch. Dist., 168
N.H. 47, 51 (2015), and, the defendants argued, the plaintiff failed to allege the
requisite nexus. See RSA 507-B:2 (2010); see also Martineau v. Antilus, Civil
No. 16-cv-541-LM, 2017 WL 2693491, at *4 (D.N.H. June 22, 2017) (explaining
that, “[a]lthough county employees caused [inmate’s] injuries in a county-
operated facility, his injuries were wholly unrelated to the physical premises of
the Jail,” and, thus, county was entitled to immunity under RSA 507-B:2);
Maryea v. Baggs, Civil No. 13-cv-318-LM, 2016 WL 1060226, at *5-*6 (D.N.H.
March 15, 2016) (deciding that county was entitled to immunity under RSA
507-B:2 because inmate failed to show a nexus between her claim that county
negligently failed to prevent other inmates from assaulting her and county’s
“operation of the physical [house of corrections] premises”). The defendants
also asserted that Van Wickler was entitled to immunity as to those claims
asserted against him in his official capacity, “absent any individual, specific
conduct” by him.

Over the plaintiff’s objection, the trial court partially granted the
defendants’ motion, ruling that RSA chapter 507-B barred counts 17, 19-21,
24, 28-29, 31, 33, 36, 38, 40-45, and 47-51. The court decided that counts 27
(concerning negligent failure of CCHOC to distribute medication “on a regular
schedule”), 30 (same), 32 (concerning CCHOC’s negligent failure to obtain the
plaintiff’s medical records until approximately five months after he arrived), 34
(alleging that CCHOC is negligent because it has “forced” the plaintiff to sleep
on a steel plate “with minimal padding or protection”), 35 (same), 39 (alleging
that forcing the plaintiff to sleep on a steel plate constitutes intentional
infliction of emotional distress), and 46 (alleging that CCHOC violated the New
Hampshire Consumer Protection Act by using debit cards to issue refunds to
inmates from commissary accounts) survived the motion because, liberally
construed, they sufficiently pleaded the requisite nexus.

In October 2017, the plaintiff filed a motion for leave to file an
interlocutory appeal from the trial court’s rulings, asserting that “this case

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cannot and will not be fully adjudicated” until this court ruled on the questions
of law posed in his proposed interlocutory appeal. That motion was denied,
and the plaintiff does not challenge the denial in this appeal.

In August 2018, the plaintiff moved again for leave to file an interlocutory
appeal, arguing that “[a]s the case stands at this time, the remaining counts
are insufficient as a basis to continue the action without addressing the three
questions raised in [his] prior Motion for Interlocutory Appeal.” The trial court
denied his motion.

The plaintiff then moved for voluntary nonsuit of his remaining counts,
asserting that his “claims are insufficient to support continued prosecution of
this action without the three questions raised in [his] [proposed] Interlocutory
Appeal being answered, and that to continue to prosecute this action would
constitute a waste of time and resources for both parties and [the trial] court.”
The defendants responded that that they objected to the motion to the extent
that it sought dismissal of the plaintiff’s remaining claims without prejudice
and that they assented to the motion to the extent that it sought dismissal of
those claims with prejudice. In addition, the defendants brought a third
motion to dismiss, seeking dismissal of the plaintiff’s remaining claims on the
ground that he failed “to state viable and cognizable claims.” The plaintiff
objected to the defendant’s motion, asserting that it was “moot” in light of his
motion for voluntary nonsuit.

In a lengthy narrative order, the trial court denied the plaintiff’s motion
for voluntary nonsuit and granted the defendants’ motion to dismiss counts 27,
30, and 32. The plaintiff moved for reconsideration, asserting that “any Non-
Suit granted at this time is ‘with prejudice’ as the Statute of Limitations has
expired on any and all issues [he] might bring against these defendants, and
these issues may only be resurrected as a result of the appeals process.”
Thereafter, the trial court entered nonsuit with prejudice of claims 34, 35, 39
and 46. This appeal followed.

On appeal, the plaintiff first argues that the trial court erred by
dismissing his state constitutional claims because, he asserts, unless he is
allowed to bring those claims to recover monetary damages, he has no other
viable remedy. He concedes that he “could have continued to pursue [his]
equitable claims” following his transfer to state prison and that he also could
have filed a federal claim “under Title 42 U.S.C. §1983,” but contends that
such avenues were “problematic.” He asks that we “create a narrowly tailored
exception to the existing standard and allow plaintiffs to receive monetary
damages for violations of state Constitutional rights by county and other
municipal corrections facilities.” Alternatively, he asks that the exception be
applied “only to inmates: a) whose term of incarceration at that facility ends
before litigation can be completed; and/or b) who are transferred out of a
facility due to the filing or threatened filing of litigation.”

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 The plaintiff next asserts that the trial court erred by ruling that RSA
chapter 507-B bars his negligence claims because, he contends, “the
negligence complained of was a result of policies and procedures put in place
by [the defendants] and were an integral part of the daily operation of the
facility,” and, therefore, the negligence arises directly from the defendants’
ownership, maintenance, or operation of CCHOC. He also argues that his
claims brought under the New Hampshire Consumer Protection Act are viable.

The plaintiff next contends that the trial court unsustainably exercised
its discretion by denying his second request for leave to file an interlocutory
appeal. Finally, he argues that the trial court erred by accepting and granting
the defendants’ third motion to dismiss because that motion: (1) “had been
being promised by defendants for approximately one year”; (2) “had twice been
used to support defendants’ arguments in opposition to plaintiff’s Motion to
Allow Interlocutory Appeal”; and (3) was not filed until after the plaintiff had
filed his motion for voluntary nonsuit.

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 do not, however, credit allegations in
the complaint that are merely conclusions of law. Id. 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. If the allegations constitute a
basis for legal relief, we must hold that it was improper to grant the motion to
dismiss. Id. Assuming without deciding that the trial court’s denial of the
plaintiff’s second request for leave to file an interlocutory appeal from ruling
constitutes an appealable order, we review the trial court’s denial under our
unsustainable exercise of discretion standard. See State v. Lambert, 147 N.H.
295, 296 (2001).

As the appealing party, the plaintiff has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s numerous orders, the plaintiff’s challenges to them,
the relevant law, and the record submitted on appeal, we conclude that the
plaintiff has not demonstrated reversible error. See id.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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