UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Dennis A. Smith

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

Warden, New Hampshire

State Prison, et al.

O R D E R

The magistrate judge issued a further report and

recommendation on Dennnis Smith’s motion for a preliminary

injunction. The magistrate judge again concluded that Smith’s

motion should be denied. Smith objects to the further report and

recommendation, contending that the magistrate judge improperly

found that his behavior, which resulted in disciplinary reports

against him, was the basis for the decision to transfer him to

Texas, and erred in his analysis of Smith’s equal protection

claim.

In reviewing a magistrate judge’s report and recommendation,

the court makes “a de novo determination of those portions of the

report or specified proposed findings and recommendations to

which objection is made.” 28 U.S.C. § 636(b)(1). The court may

“accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” Id. If

necessary, the court may also consider additional evidence. Id.

Case 1:05-cv-00374-JD Document 61 Filed 01/30/07 Page 1 of 8
2

De novo review in the context of a motion for a preliminary

injunction requires consideration of four sequential factors: (1)

the likelihood of success on the merits; (2) the potential for

irreparable harm [to the movant] if the injunction is denied; (3)

the balance of relevant impositions, . . . ; and (4) the effect

(if any) of the court’s ruling on the public interest.” Esso

Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.

2006). “The party seeking the preliminary injunction bears the

burden of establishing that these four factors weigh in [his]

favor.” Id. If the party seeking injunctive relief cannot

establish a likelihood of success on the merits, his motion fails

regardless of his showing as to the other factors. Id. In

addition, harm is not irreparable if the party can be compensated

by money damages. P.R. Hosp. Supply, Inc. v. Boston Scientific

Corp., 426 F.3d 503, 507 (1st Cir. 2005).

A. Disciplinary Reports

Smith objects to the magistrate judge’s finding in the

original report and recommendation, which is reiterated in the

further report and recommendation, that Smith’s behavior

justified the prison’s decision to transfer him to Texas. Smith

particularly objects to the magistrate judge’s consideration of

Smith’s threat in October of 2004 to throw infected blood and

Case 1:05-cv-00374-JD Document 61 Filed 01/30/07 Page 2 of 8
3

feces at the prison staff as part of the misbehavior that

resulted in his transfer. Smith asserts that because that

incident occurred after the transfer decision had been made, it

does not support the conclusion that the decision was not

retaliatory. He argues that the evidence shows that the

disciplinary reports were insufficient to justify transferring

him.

The magistrate judge cited four disciplinary incidents that

justified the decision to transfer Smith to Texas because of his

behavior. He also noted the October threat. He found that

Smith’s explanations about those incidents were not credible. In

the further report and recommendation, the magistrate judge found

that even if the disciplinary event in which Smith threatened to

throw infected blood and feces at prison staff occurred after the

decision had been made to transfer him to Texas, that event

provided additional support for the transfer decision. He also

found that the classification officer, Kimberly Lacasse, was

credible when she testified at the preliminary injunction hearing

that the decision to transfer Smith was based on his misbehavior

and was not made in retaliation for his lawsuit. He concluded

that Smith had not shown that the decision to transfer him to

Texas was retaliatory.

Case 1:05-cv-00374-JD Document 61 Filed 01/30/07 Page 3 of 8
4

The testimony at the hearing about the reasons for

transferring Smith to Texas and about his behavior provide more

than ample basis for the transfer decision, undermining the

likelihood of Smith’s success on the merits of his claim. 

Smith’s theory that the disciplinary reports were concocted to

provide a basis for his transfer is not supported by the evidence

and is not credible. Therefore, Smith’s objection to that

portion of the magistrate judge’s report and recommendation is

denied.

B. Equal Protection

The magistrate judge explained in the further report and

recommendation that he interpreted Smith’s motion for a

preliminary injunction to assert only the retaliatory transfer

claim as a basis for injunctive relief and to use the equal

protection violation argument as grounds for irreparable harm. 

Nevertheless, the magistrate judge also analyzed the equal

protection claim as a basis for injunctive relief. He concluded

that Smith’s equal protection argument did not show irreparable

harm and was not likely to succeed on the merits.

An equal protection claim that does not involve a suspect

classification requires a showing that the plaintiff is being

intentionally treated differently from others who are similarly

Case 1:05-cv-00374-JD Document 61 Filed 01/30/07 Page 4 of 8
5

situated to him without a rational basis for the difference in

treatment. Buchanan v. Maine, 469 F.3d 158, 177-78 (1st Cir.

2006). In the prison context, an inmate can show an equal

protection violation only if he can show that the different

treatment he received was not reasonably related to a legitimate

penological purpose. Trujillo v. Williams, 465 F.3d 1210, 1228

(10th Cir. 2006). 

The Interstate Corrections Compact requires “[a]ll inmates

who may be confined in an institution pursuant to the provisions

of this compact shall be treated in a reasonable and humane

manner and shall be treated equally with such similar inmates of

the receiving state as may be confined in the same institution.” 

N.H. Rev. Stat. Ann. § 622-B:2, IV(e). The agreement between

Texas and New Hampshire under the Interstate Corrections Compact

requires Texas to afford New Hampshire inmates housed in Texas

the same opportunity to participate in programs or other work and

the same compensation as Texas inmates would have. See Report

and Recommendation, doc. 20, at 20 (quoting agreement). It

appears to be undisputed that Texas compensates inmates for their

work by giving them good time credit against their Texas

sentences while New Hampshire compensates inmates for work with

wages.

Case 1:05-cv-00374-JD Document 61 Filed 01/30/07 Page 5 of 8
6

As construed following preliminary review under 28 U.S.C. §

1915A, Smith alleges that he is similarly situated to the Texas

inmates in the prison where he is currently held but has been

denied the opportunity to earn credit against his sentence for

his work, which is a privilege afforded to the Texas inmates. 

The reason Smith cannot earn credit that is provided to Texas

inmates is because under New Hampshire law, an inmate’s sentence

is subject to restrictions on good time credit and cannot be

reduced by credit received for working. See N.H. Rev. Stat. Ann.

§ 651:2, II-e. Therefore, the difference between Smith and other

Texas inmates is the different systems used by Texas and New

Hampshire to calculate their inmates’ sentences. Because New

Hampshire law mandates the result that Smith is challenging, the

Warden has a legitimate reason for denying Smith good time credit

based on his work in the Texas prison. 

Even if Smith were able to show a likelihood of success on

the merits of his equal protection claim, however, he has not

shown that the lack of injunctive relief would cause him

irreparable harm. In his motion, Smith seeks an order requiring

his immediate return to the New Hampshire State Prison; he does

not ask that he be given good time credit for his work at the

prison in Texas. If his request for an immediate return to New

Hampshire were granted, Smith would receive wages for his work at

Case 1:05-cv-00374-JD Document 61 Filed 01/30/07 Page 6 of 8
7

the New Hampshire State Prison. The harm that would be caused by

denying injunctive relief, delay in his return to New Hampshire,

could be remedied by damages if Smith were eventually to prevail

on his equal protection claim.

C. Access to the Courts

In his motion, Smith argued that the Texas prison

authorities, based on their policies and procedures, had taken

all of his personal funds, leaving him unable to pay for postage

to pursue litigation here in New Hampshire. The magistrate judge

addressed that issue at the hearing, instructing counsel for the

warden to be sure that Smith had sufficient funds or postage to

comply with his right to access the court. Smith has continued

filing motions in this case, showing that he has ample access to

the court. He also did not object to the lack of relief in the

report and recommendation on that issue. Therefore, that issue

is apparently resolved and need not be addressed here.

Case 1:05-cv-00374-JD Document 61 Filed 01/30/07 Page 7 of 8
8

Conclusion

For the foregoing reasons, the report and recommendation

dated November 3, 2006, (document no. 47) and the further report

and recommendation dated December 11, 2006, (document no. 55),

are approved, as set forth in this order. The plaintiff’s motion

for a preliminary injunction (document no. 37) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

January 30, 2007

cc: Andrew B. Livernois, Esquire

Dennis A. Smith, pro se

Case 1:05-cv-00374-JD Document 61 Filed 01/30/07 Page 8 of 8