Morgan v . Messenger CV-02-319-M 08/27/03
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James L . Morgan,
Plaintiff
v. Civil N o . 02-319-M
Opinion N o . 2003 DNH 145
Lance Messenger,
Defendant
O R D E R
Pro se plaintiff, James Morgan, is an inmate at the New
Hampshire State Prison. In 1996, he was convicted in state court
of aggravated felonious sexual assault and sentenced to three and
one-half years to life in prison, with all but seven years of the
maximum suspended - essentially a three and one-half to seven
year sentence, provided Morgan did not re-offend upon his release
(whether on parole or upon completion of the sentence). Under
the terms of that sentence, the State could seek to have the
suspended portion of it reimposed at any time within the next 20
years, should Morgan re-offend. In January of 2000, he was
released on parole. But, in light of his criminal sexual history
(which includes a conviction in Vermont on five counts of
molesting young boys, as well as the offense underlying this
case) New Hampshire authorities provided, among other things,
that Morgan could not have unsupervised contact with minor
children.
Fewer than six months after his release on parole, Morgan
was arrested and returned to prison for having violated various
conditions of that parole, including the stipulation that he not
have any unsupervised contact with minor children. Absent
further intervention by the State (i.e., moving the court to
bring forward the suspended portion of his sentence), however,
Morgan would have served the imposed period of incarceration in
2002 and would have been released into the community, without any
parole supervision. (The suspended portion of the sentence could
still be imposed, but only for cause.)
When Morgan was re-incarcerated for having violated the
conditions of his parole, defendant, Lance Messenger, was serving
as director of the New Hampshire Department of Corrections Sexual
Offender Program - a treatment program for inmates convicted of
sexual crimes. The program is designed to prevent those inmates
from re-offending upon release. In that capacity, Messenger had
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access to information in the files of those inmates who were
taking part in the program, including Morgan.
Based upon his having treated Morgan, and in light of
Morgan’s criminal sexual history, defendant believed Morgan posed
a high risk of recidivism and, if released from prison without
adequate supervision, a real danger to the community.
Accordingly, upon learning that Morgan had violated the
conditions of his parole by, among other things, having
unsupervised contact with minor children, defendant contacted
both the New Hampshire Parole Board and the Grafton County
Attorney, recommending that the State seek to bring forward the
suspended portion of Morgan’s sentence, so that upon his release
from incarceration, the State might impose parole conditions and
continue to monitor his behavior.
The Grafton County Attorney responded by bringing an action
in state court, seeking to have the suspended portion of
plaintiff’s sentence imposed. Following a hearing on the matter,
at which plaintiff was represented by counsel, the court amended
plaintiff’s sentencing order as follows:
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That portion of the sentence which states “All but 7
year(s) of the maximum sentence is suspended” shall be
modified to reflect that “All but 20 year(s) of the
maximum sentence is suspended.” All other terms of the
February 9, 1996 sentence and February 2 2 , 1996
amendment shall remain in full force and effect.
Notice of Amendment to Sentence, Exhibit G to defendant’s
memorandum (document n o . 4 5 ) . Plaintiff is currently
incarcerated and serving that sentence.
Without having first filed any type of administrative
grievance, plaintiff brought this suit. See Exhibit H to
defendant’s memorandum, Affidavit of Barbara Olson (stating that
there is no record of any administrative grievance filed by
Morgan relating to the subject matter of this suit). See also
LaFauci v . N.H. Dep’t of Corr., 2001 DNH 2 0 4 ,
2001 WL 1570932
(D.N.H. Oct. 3 1 , 2001) (describing in detail the New Hampshire
Department of Corrections’ administrative grievance scheme). The
sole remaining claim of Morgan’s complaint alleges that Messenger
violated his constitutionally protected right of privacy when
Messenger contacted the parole board and county attorney, and
disclosed private information from his treatment files. In
short, plaintiff claims that Messenger unlawfully revealed
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confidential medical information to those parties without his
authorization or any legal authority to do s o .
Messenger moves for summary judgment, asserting: (1)
plaintiff has failed to exhaust his administrative remedies, as
required by the Prison Litigation Reform Act, 42 U.S.C. §
1997e(a); (2) even if exhaustion were not required, he had a
valid penological interest in releasing information about
plaintiff to State authorities and, therefore, plaintiff’s
constitutional rights were not violated; and (3) even if
plaintiff’s rights were violated, Messenger i s , nevertheless,
entitled to the protections afforded by qualified immunity.
Because the court agrees that plaintiff failed to exhaust
available administrative remedies, it need not (and, in fact,
cannot) address the underlying merits of plaintiff’s claims or
the substantive arguments asserted by Messenger in support of his
motion for summary judgment.
Discussion
42 U.S.C. § 1997e, as amended by the Prison Litigation
Reform Act of 1995 (“PLRA”), provides that:
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No action shall be brought with respect to prison
conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). The Supreme Court has held that section
1997(e) requires an inmate to exhaust all available
administrative processes before filing a federal suit relating to
the conditions of his or her confinement, even if some or all of
the relief the inmate seeks is not available through the
administrative process. Booth v . Churner, 532 U.S. 7 3 1 , 734
(2001) (“The question is whether an inmate seeking only money
damages must complete a prison administrative process that could
provide some sort of relief on the complaint stated, but no
money. We hold that he must.”). In light of that holding, the
Court affirmed the lower court’s dismissal, without prejudice, of
Booth’s Eighth Amendment claims for failure to exhaust.
Although the Supreme Court implicitly concluded that Booth’s
Eighth Amendment claims (e.g., assault and deliberate
indifference to medical needs) related to “prison conditions”
and, therefore, were subject to the PLRA’s exhaustion
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requirement, there appeared to be some debate in various circuits
(much, though not all, of it preceding the Booth opinion) as to
whether such claims are properly viewed as falling within the
scope of the PLRA’s exhaustion requirement o r , more specifically,
the phrase “prison conditions.” That question was resolved by
the Court less than a year after it issued the Booth opinion,
when it held:
[T]he PLRA’s exhaustion requirement applies to all
inmate suits about prison life, whether they involve
general circumstances or particular episodes, and
whether they allege excessive force or some other
wrong.
Porter v . Nussle, 534 U.S. 516, 532 (2002). Consequently, the
PLRA’s exhaustion requirement applies when the following three
criteria are met: (1) the lawsuit was filed by a “prisoner
confined in any jail, prison, or other correctional facility”;
(2) he or she filed that lawsuit after the effective date of the
PLRA (i.e., April 2 6 , 1996); and (3) the lawsuit is “with respect
to prison conditions,” as that phrase has been defined by the
Supreme Court.
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Here, the first two conditions are plainly met: Morgan is an
inmate at the New Hampshire State Prison (and was incarcerated at
the time that Messenger wrote the letters that form the basis of
Morgan’s claims); and this action was filed in July of 2002, well
after the PLRA’s effective date. The only real question is
whether Morgan’s assertion that Messenger violated his
constitutionally protected privacy rights by divulging allegedly
privileged medical information to the county attorney and parole
board is a complaint “with respect to prison conditions.” The
court concludes that it i s .
As was the case in both Booth and Porter, plaintiff’s claims
involve allegations that an employee of a correctional facility
engaged in intentional misconduct that violated his
constitutionally protected rights. And, plaintiff’s claims
plainly involve “prison conditions” insofar a s : (1) Messenger
acquired the allegedly confidential information from plaintiff’s
prison medical records and by virtue of having treated plaintiff
during the course of his participation in the prison’s sexual
offender program; and (2) according to plaintiff, Messenger’s
allegedly improper disclosure of that information affected the
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“conditions” of plaintiff’s confinement by extending the duration
of his incarceration - that is to say, plaintiff claims that
absent Messenger’s allegedly improper disclosure of private
medical information, the State would not have sought to amend his
sentence by bringing forward 13 years of his suspended sentence.
In sum, plaintiff’s claim that Messenger violated his
constitutionally protected privacy rights falls squarely within
the Supreme Court’s definition of a suit relating to “prison
conditions” and i s , therefore, subject to the PLRA’s exhaustion
requirement. See, e.g., Petty v . Goord, 2002 WL 31458240
(S.D.N.Y. Nov. 4 , 2002) (concluding that an inmate’s claim that
correctional facility employees violated his constitutional right
to privacy by disclosing his HIV-positive status was subject to
the PLRA’s exhaustion requirement); Ventura Valez v .
Administracion de Correccion,
2001 WL 1636815 (D.P.R. Nov. 3 0 ,
2001) (dismissing inmate’s claim that corrections officials
violated his constitutionally protected privacy rights for
failure to exhaust). And, because plaintiff did not exhaust
available administrative remedies, his claims against Messenger
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must be dismissed. See Medina-Claudio v . Rodriguez-Mateo, 292
F.3d 3 1 , 35-36 (1st Cir. 2002).
Conclusion
Defendant’s motion for summary judgment (document n o . 45) is
granted in part and denied in part. To the extent it seeks
dismissal of all claims against defendant Lance Messenger on
grounds that plaintiff failed to exhaust available administrative
remedies, as required by the PLRA, that motion is granted. In
all other respects, it is denied.
The sole remaining claim in plaintiff’s complaint - that
Messenger violated his constitutionally protected privacy rights
- is hereby dismissed, albeit without prejudice. Plaintiff’s
motion for subpoena(s) of documents (document n o . 4 3 ) , as well as
his motion for reconsideration (document n o . 4 4 ) , are denied.
The Clerk of Court shall enter judgment in accordance with this
order and close the case.
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SO ORDERED.
Steven J. McAuliffe
United States District Judge
August 2 7 , 2003
cc: James L . Morgan
Andrew B . Livernois, Esq.
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