UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dennis A. Smith

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

New Hampshire State Prison, et al.

REPORT AND RECOMMENDATION

Pro se prisoner Dennis A. Smith (“Smith”) filed a complaint

pursuant to 42 U.S.C. § 1983, claiming his constitutional rights

were violated when the New Hampshire State Prison (“NHSP”)

transferred him to Texas on December 16, 2004. Smith moved for

preliminary injunctive relief (doc. no. 37), seeking an immediate

transfer back to the NHSP. A hearing was held on September 26,

2006, to determine whether the preliminary injunction should

issue. After carefully considering the claims and evidence

presented, I recommend Smith’s motion for a preliminary

injunction be denied and his complaint be dismissed.

Analysis

1. Standard of Review

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of

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1“Mere injuries, however substantial, in terms of money,

time and energy necessarily expended in the absence of a stay,

are not enough. The possibility that adequate compensatory or

other corrective relief will be available at a later date, in the

ordinary course of litigation, weighs heavily against a claim of

irreparable harm.” Acierno,40 F.3d at 653. 

2

the matter. Such a situation arises when some harm from the

challenged conduct could not be adequately redressed with

traditional legal or equitable remedies following a trial. See

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F,3d 12, 18

(1st Cir. 1996) (finding irreparable harm where legal remedies

are inadequate); see also Acierno v. New Castle County, 40 F.3d

645, 653 (3rd Cir. 1994) (explaining irreparable harm and its

effect on the contours of preliminary injunctive relief)1. 

Absent irreparable harm, there is no need for a preliminary

injunction.

The need to prevent irreparable harm, however, exists only

to enable the court to render a meaningful disposition on the

underlying dispute. See CMM Cable Rep., Inc. v. Ocean Coast

Prop., Inc., 48 F.3d 618, 620-1 (1st Cir. 1995)(explaining the

purpose of enjoining certain conduct as being to “preserve the

‘status quo’ . . . to permit the court more effectively to remedy

discerned wrongs”); see also Becton v. Thomas, 48 F. Supp. 2d

747, 753 (W.D. Tenn. 1999) (“‘The purpose of a preliminary

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injunction is always to prevent irreparable injury so as to

preserve the court’s ability to render a meaningful decision on

the merits.’” (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921,

925 (6th Cir. 1978)). The court’s focus, therefore, must always

be on the underlying merits of the case, and what needs to be

done to ensure that the dispute can be meaningfully resolved.

A preliminary injunction cannot issue unless the moving

party satisfies four factors which establish its need for such

relief. See Esso Standard Oil Co. (Puerto Rico) v. MonroigZavas, 445 F.3d 13, 17-18 (1st Cir. 2006) (discussing the

requisite showing to obtain a preliminary injunction); see also

Ross-Simons of Warwick, Inc., 102 F.3d at 18-19 (explaining the

burden of proof for a preliminary injunction). Those factors

are: “(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, i.e., the

hardship to the nonmovant if enjoined as contrasted with the

hardship to the movant if no injunction issues; and (4) the

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

Esso Standard Oil Co., 445 F.3d at 18. If the plaintiff is not

able to show a likelihood of success on the merits, the remaining

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factors “become matters of idle curiosity,” id., insufficient to

carry the weight of this extraordinary relief on their own. 

See id. (the “sine qua non of the four-part inquiry is likelihood

of success on the merits”). Yet, “the predicted harm and the

likelihood of success on the merits must be juxtaposed and

weighed in tandem.” Ross-Simons of Warwick, Inc., 102 F.3d at

19. 

Evidence

On his direct examination Smith testified that when he was

last transferred back to New Hampshire he was scheduled for

transfer to Oregon. Before that occurred he met with Warden

Coplan. She agreed to keep him in New Hampshire if he maintained

acceptable behavior. Smith claims that after Warden Coplan was

transferred to a different facility and after Majors Shaw and

Moyer were no longer at SHU, he began to be harassed by Major

Moquin, Officer Carr and others. The Acting Warden, Crompton,

and then the new Warden Cattell, he said, failed to stop that

harassment. Smith testified that a number of charges resulted

which he claims were trumped-up and which, he says, became the

basis for his transfer to Texas. 

In fact, soon after Warden Coplan left in June 2004, he did

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receive a number of write-ups. 

1. July 25, 2004

Smith was charged and, after a hearing, convicted of

threatening staff. The incident arose over Smith’s

complaints about staff’s refusal to sharpen his pencil. 

2. August 9, 2004

Smith was charged and, after a hearing, convicted of

having a razor blade (hidden among some batteries), an item

prohibited in SHU and also of having a guard’s home address

and phone number. The latter, which he obtained from a news

article, was written on the inside of an envelope. 

Possession of such information is deemed contraband and

threatening. 

3. August 13, 2004 

Smith was charged, and after a hearing, convicted of

threatening Unit Manager Moquin by saying “I’ll get your

home address too”. 

4. August 19, 2004

Smith was charged and convicted of lying about the

source of the razor blade. 

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Mr. Smith offered explanations that the August 19th charge arose

from a miscommunication, that the August 13th was simply advising

Moquin that another inmate had his address, that the first

address came from the newspaper and that he did not know razor

blades were not allowed in SHU and it came in his laundry. I do

not find Smith credible because the address and razor were

secreted away. 

Additionally, he shortly thereafter, in October of 2004

threatened that he would mix his infected blood and feces and

throw it at staff. 

Requests were sent out to states for a reciprocal prisoner

transfer and on December 16, 2004 Smith was transferred. 

I find that the transfer was not retaliatory for his

litigation, but for his misbehavior. The charges were not

trumped-up. They were appropriate. Smith has not shown

likelihood of success on the merits or irreparable harm. The

defendant had justifiable penological reasons for his behavior. 

Conclusion

Since Smith failed to demonstrate any risk of irreparable

harm or any likelihood of success on the merits of his claims, I

recommend that his motion for preliminary injunctive relief be

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denied. I further recommend that his complaint be dismissed for

failure to state a claim upon which relief may be granted. See 

28 U.S.C. § 1915A(b); see also LR 4.3(d)(2).

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 28 U.S.C. § 636(b)(1);

see also Unauthorized Practice of Law Comm. 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: November 3, 2006

cc: Dennis A. Smith, pro se

 Andrew B. Livernois, Esq.

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