1Despite Mr. Smith’s opinion of his own writing, I find it

requires me to try to interpret aspects of it. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dennis A. Smith

v. Civil No. 05-cv-374-JD

New Hampshire State Prison, Warden, et al.

FURTHER REPORT AND RECOMMENDATION

 Judge DiClerico has referred back to me for further

consideration plaintiff’s request for preliminary injunction in

light of matters raised in the objection to my initial report. 

In recommending dismissal I did overlook plaintiff’s equal

protection claim. I withdraw that recommendation. 

I interpreted1 (and frankly I still do interpret)

plaintiff’s preliminary injunction request as a request for

return to New Hampshire because his transfer was retaliatory. As

I interpreted the written and oral presentation of his equal

protection claim at the hearing, it was offered on the

irreparable harm issue, not as an independent basis for an

injunction directing his return nor for a request for some form

Case 1:05-cv-00374-JD Document 55 Filed 12/11/06 Page 1 of 8
2The Texas authorities are not parties to this suit.

3I did ask where Smith was going with his questions of the

Warden since she had nothing to do with his transfer. He

explained his “clever and somewhat eccentric line of questioning”

2

of injunction as to his Texas conditions of confinement.2 Judge

DiClerico has construed the motion as including “his equal

protection claim in support of his motion for injunctive relief.” 

Document no. 54, p.5. Before addressing the equal protection

claim I will address Smith’s other complaints. 

1. Smith’s “Clever and somewhat eccentric line of

questioning.” 

The transcript clearly demonstrates that I not only did not

cut Smith’s examination off as he alleges (although I did

interrupt Smith on occasion) but instead, with every single

witness, I asked him if he had any further questions: 

a. Smith as a witness

End of direct: Court: “[I]s there anything else

you want to add with regard to the claims in the

preliminary injunction.”

Smith: No

End of cross: Court: “All right, before we bring

on the other witnesses is there anything else you want

to say, Mr. Smith.” 

Smith: “No, that’s it.”

b. Warden Coplan3

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as one effort to show Coplan telling Crompton and others that

Smith could stay in New Hampshire was the opening to trumped-up

charges and a transfer when she left.

3

End of Smith cross: Court: “Do you have any more

relevant questions for the Warden?” 

Mr. Smith: “No”. 

c. Ms. Lacasse

End of cross by Smith: “I have no further

questions.” 

In short, while Smith and I had a discussion of the

relevance of his inquiry, I never denied him an area of inquiry

and he expressly affirmed that he had no further questions as to

each witness. 

2. Submission of Crucial Documents

Smith claims that he was denied the opportunity to submit

crucial documents which would have had, he says, a dramatic

impact on the outcome of the proceeding. His objection does not

say what the documents are that he claims he could not submit. 

At the start of the hearing he did say he had some documents

about Texas prison policies that he wanted to submit but Texas

would not fax them. He said the “Texas policy and procedure

constituted irreparable harm.” I suggested that he read the

document(s) into evidence after he was sworn. He referenced some

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4

but read none. 

Smith later asked to have the “compact referral summary”

admitted into evidence. A copy was obtained from defendant

during the hearing and it was marked as Exhibit 1. Immediately

after that (at the end of the hearing) I asked Smith about

further documents. 

Court: “[A]re there any other documents you think are

important for me to consider with regard to your

retaliatory transfer claim and/or your equal protection

claim.” 

Smith: “I said no.” 

3. Unidentifiable Guard

In my report I referenced “Officer Carr.” That’s the way it

was written in my notes. Looking at the court reporter’s rough

transcript she spells it as “Carol”. No one spelled it for the

record. I’ll assume it was “Carol” and I hereby amend my report

to make that change. 

4. Objections to Reliance on Disciplinary Reports

I found that the state was justified in relying on the

misbehavior referenced in those reports. I further found Smith’s

explanations lacked credibility. Plaintiff also complained about

my reference to the October 2004 threat to throw infected blood

and feces at staff because it came after his “transfer packet”

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4Plaintiff elsewhere alleged that the packet was mailed on

September 29, 2004.

5

was sent to Texas. Neither side put into evidence the date the

“transfer packet” was sent to Texas.4 Assuming that one

disciplinary event was after the transfer packet was mailed does

not make the event irrelevant. It reinforced defendant’s

decision and, if nothing else, it removed any reason to

reconsider the transfer. My recommendation is unchanged in this

regard. 

5. Disciplinary Transfer

Plaintiff claims that his transfer had to be retaliatory

because there is no prison policy establishing discipline as a

basis for transfer and no other inmate has ever been transferred

for that reason. Plaintiff offered no evidence to support his

claim. My examination of the prison’s “PPD’s” indicates that

they do not address any reasons for transfer. Ms. Lacasse

testified that the decision to transfer Smith out of state was

based upon his misbehavior not retaliation for a lawsuit. I find

her credible. 

Further, the First Circuit in dicta suggests that the

Interstate Compact must be read to apply to transfers for a

prisoner’s “own or others’ safety, for disciplinary reasons, for

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6

reasons of overcrowding, health, etc.” Sisbarro v. Warden,

Massachusetts State Penitentiary, 592 F.2d 1, 3 (1st Cir. 1979). 

I find that defendants did not transfer Smith to retaliate

against him because of his prior lawsuit. His constitutionally

protected conduct was not a substantial or motivating factor in

the decision to transfer him. See Bennett v. Goord, 343 F.3d

133, 137 (2d Cir. 2003); Rauser v. Horn, 241 F.3d 330, 333 (3d

Cir. 2001). 

6. Equal Protection

I construed Smith’s equal protection claim to be that he “is

similarly situated to inmates in the receiving state (Texas) but

has been denied the opportunity to earn good time and bonus time,

a privilege afforded to other Texas inmates.” Document no. 20,

p.21. That construction of Smith’s equal protection claim was

approved by Order on Ma 17, 2006. Document no. 23. No

amendments have been made to this claim. 

The claim is only against the Warden in his representative

capacity. Document no. 20, p.19. Defense counsel does not

dispute that Texas law permits inmates to earn “good time”, but

not earn money, for work. Smith, and all other out-of-state

inmates housed in Texas, do earn good time credit - so far as

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Texas authorities are concerned. 

The Equal Protection Clause of the Fourteenth Amendment

requires that similarly situated persons be treated alike absent

a rational basis for doing otherwise. See City of Cleburne v.

Cleburne Living Cr., Inc., 473 U.S. 432, 440 (1985) (citing

Plyler v. Doe, 452 U.S. 202, 216 (1982)), accord Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000). For equal

protection purposes, inmates transferred pursuant to an

interstate compact are similarly situated to inmates in the

receiving state. See Stewart v. McManus, 924 F.2d 138, 142 (8th

Cir. 1991). 

Texas authorities offer Smith the same good time credits

offered to Texas inmates and deny him the same “work pay” denied

to Texas inmates. New Hampshire denies its inmates, on the basis

of statute, good time work credits, whether they are housed in

New Hampshire or Texas. Smith’s complaint is that he cannot use

any good time work credits earned in Texas against his New

Hampshire sentences. That is a matter of the difference in state

statutes, not a denial of equal protection in matters of

conditions of confinement. It is no different constitutionally

than a difference in work pay rate from one state to another. I

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8

recommend that Smith be denied any preliminary injunctive relief

on his equal protection claim. 

I renew my recommendation that the motion (document no. 37)

be denied. 

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: December 11, 2006

cc: Andrew B. Livernois, Esq.

 Dennis A. Smith, pro se

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