Jason A. Czekalski v. Kathleen Duchesne & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0300, Jason A. Czekalski v. Kathleen
Duchesne & a., the court on May 1, 2024, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The plaintiff, Jason A. Czekalski, appeals the order of the
Superior Court (Bornstein, J.) dismissing his complaint against the defendants,
Kathleen Duchesne and Corey Riendeau, the Warden of the Northern New
Hampshire Correctional Facility, arguing that the trial court erred in:
(1) dismissing his complaint for failure to state a claim; and (2) failing to
provide written findings of fact and rulings of law. We affirm.

The plaintiff, a prison inmate, alleged that he filed numerous complaints
against Duchesne, the laundry supervisor at the prison, about wet laundry.
On June 3, 2022, the plaintiff wrote a “sternly-worded” inmate request slip to
Duchesne “telling her to do her job and quit trying to push the responsibility
off on Security.” The plaintiff complained that his towel was returned wet and
that his laundry “clearly never even went into a dryer.” The plaintiff told
Duchesne not to “lie” or “try to excuse” the wet laundry by telling him to
“contact unit staff when clothes come back wet.”

On June 6, 2022, Duchesne responded in writing, stating that all clothes
are placed in a dryer for the proper amount of time. She wrote a disciplinary
ticket against the plaintiff accusing him of insubordination or disrespect
toward a staff member, and lying or providing false or misleading information.”
After an investigation, Duchesne’s report was found to be “true as written,” and
was processed as a “minor disciplinary.” The plaintiff requested a hearing,
after which the hearing officer found the plaintiff not guilty on both counts.

The plaintiff then filed a complaint against the defendants in superior
court alleging: (1) abuse of process; (2) malicious prosecution; (3) retaliation in
violation of 42 U.S.C. § 1983; (4) intentional refusal to supervise; (5) failure to
protect the plaintiff from retaliation in violation of 42 U.S.C. § 1983; and
(6) conspiracy to violate § 1983. The plaintiff also sought a preliminary
injunction preventing the New Hampshire Department of Justice from
representing the defendants.

The plaintiff argues that the trial court erred in dismissing his complaint
for failure to state a claim upon which relief may be granted. When reviewing a
trial court’s grant of a motion to dismiss, we consider whether the allegations
in the plaintiff’s complaint are reasonably susceptible of a construction that
would permit recovery. New England Backflow v. Gagne, 172 N.H. 655, 661
(2019). We assume all factual allegations in the plaintiff’s complaint to be true
and construe all reasonable inferences that can be drawn from those facts in
the plaintiff’s favor. Id. We may also consider “documents the authenticity of
which are not disputed by the parties, official public records, or documents
sufficiently referred to in the complaint.” Automated Transactions, LLC v. Am.
Bankers Ass’n, 172 N.H. 528, 532 (2019).

The plaintiff argues that he stated claims of abuse of process and
malicious prosecution because he alleged that Duchesne filed a disciplinary
report, subjecting him to a disciplinary hearing, and that Duchesne’s “actions
were intentional and malicious in that [she] is an experienced [prison] employee
who knew that there was no legitimate reason to file a disciplinary ticket
against plaintiff.”

A party claiming abuse of process must prove that: (1) a person used
(2) legal process, whether criminal or civil, (3) against the party, (4) primarily to
accomplish a purpose for which it is not designed, and (5) caused harm to the
party (6) by the abuse of process. New England Backflow, 172 N.H. at 672. A
party claiming malicious prosecution must prove that: (1) he was subjected to a
criminal prosecution or civil proceeding instituted by the defendant, (2) without
probable cause, (3) with malice, and (4) the prior action terminated in the
plaintiff’s favor. Id. at 671. Both claims require “process,” which is defined “as
some activity or procedure involving the exercise, or dependent upon the
existence, of judicial authority.” Long v. Long, 136 N.H. 25, 30 (1992)
(quotation omitted). Where a court’s authority is not used, there is no
“process.” Id. at 31. We conclude that the plaintiff’s abuse of process and
malicious prosecution claims fail as a matter of law because the plaintiff failed
to allege that a legal process was involved.

The plaintiff next argues that he stated a claim of retaliation under 42
U.S.C. § 1983 because, in response to his exercise of First Amendment rights,
the “sternly-worded” inmate request slip, Duschene retaliated against him by
filing the disciplinary report. To establish a claim of First Amendment
retaliation under 42 U.S.C. § 1983, a plaintiff must show: “(1) that the speech
or conduct at issue was protected, (2) that the defendant took adverse action
against the plaintiff, and (3) that there was a causal connection between the
protected speech and the adverse action.” Cossette v. Poulin, 573 F. Supp. 2d
456, 459 (D.N.H. 2008). However, even assuming that the plaintiff’s “sternly-
worded” inmate request slip contained protected speech, “[t]he filing of a single,
later-dismissed disciplinary charge against an inmate, even if taken with a
retaliatory motive, is insufficient to qualify as more than de minimis.” Stow v.
Davis 2019 WL 6718160, *5 (D.N.H. Aug. 14, 2019). We conclude that the
plaintiff failed to state a retaliation claim under 42 U.S.C. § 1983 because he
did not allege more than a de minimis adverse action against him.

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 The plaintiff next argues that he stated claims for conspiracy and failure
to supervise by alleging that Riendeau negligently failed to act against
Duchesne, a subordinate, when she filed an allegedly false disciplinary ticket
against him, and that, together, they conspired to retaliate against him for
exercising his protected rights. Because these claims are dependent upon the
previously-alleged claims, which fail as a matter of law, these claims must also
fail. The plaintiff provides no authority for his assertion that these claims may
survive even if the previous claims fail.

The plaintiff next argues that the trial court erred in denying his request
for an injunction prohibiting the New Hampshire Department of Justice from
representing the defendants. Pursuant to RSA 99-D:2 (2023), “the attorney
general shall represent and defend” state employees and agents if “any claim is
made or any civil action is commenced against” such person and the attorney
general determines that the acts complained of were committed by the person
“while acting within the scope of official duty for the state and that such acts
were not wanton or reckless.” We conclude that the plaintiff has failed to allege
facts sufficient to show that that he was entitled to his requested injunction.
The plaintiff provides no authority for his assertion that he has taxpayer
standing to challenge the attorney general’s decision to represent the
defendants in this matter.

Finally, the plaintiff argues that, pursuant to RSA 491:15 (2010), the
trial court was required to provide written findings of fact and conclusions of
law, when he asked for them in his motion for reconsideration. RSA 491:15
provides that the “court or justice trying causes under RSA 491:13 and 491:14
shall, if either party requests it, give his decision in writing, stating the facts
found and his rulings of law, which shall be filed and recorded.” RSA 491:13
refers to the superior court’s authority to hold bench trials, and RSA 494:14
refers to the superior court’s authority to try suits in equity. See M.A. Crowley
Trucking v. Moyers, 140 N.H. 190, 195 (1995). When reviewing a trial court’s
grant of a motion to dismiss, we consider whether the allegations in the
plaintiff’s complaint are reasonably susceptible of a construction that would
permit recovery. New England Backflow, 172 N.H. at 661. We conclude that
RSA 491:15 does not apply to the trial court’s order dismissing the plaintiff’s
complaint for failure to state a claim.

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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