1Pratt’s initial complaint was filed on November 7, 2005

(document no. 1). Pratt then filed a supplement to that

complaint on February 8, 2006 (document no. 6). Because it

appears that Pratt seeks in his amended complaint (document no.

8) to clarify the claims previously raised, I will consider the

information provided in all three documents in the aggregate to

be the complaint in this matter.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Harvey Pratt

v. Civil No. 05-cv-395-PB

Richard Flynn, Commissioner of

The New Hampshire Department of

Safety, et al.

REPORT AND RECOMMENDATION

Harvey Pratt has filed an amended complaint (document no.

8), presumably intended as an objection to the Report and

Recommendation (document no. 7) issued by this Court on February

16, 2006, recommending dismissal of the complaint. After

consideration of the facts alleged in Pratt’s original,

supplemental, and amended complaints,1 I find no reason to

revisit my previous recommendation to dismiss the First Amendment

claim of lack denial of access to the courts. Further, I

recommend dismissal of the loss of employment and equal

Case 1:05-cv-00395-PB Document 10 Filed 05/24/06 Page 1 of 11
2Although the facts alleged in the initial complaint were

discussed in my February 16 Report and Recommendation, I will

briefly reiterate the facts upon which this recommendation is

based, as the facts and intended claims have been clarified by

Pratt’s amended complaint.

2

protection claims originally raised in the supplemental

complaint. Upon consideration of the amended complaint, however,

I will direct, in an Order issued simultaneously with this Report

and Recommendation, that Pratt’s claims alleging a due process

violation against the defendants for branding him as a sex

offender, as well as the pendent state tort claims based on the

same transaction, be served on the defendants.

Background2

Pratt is an inmate of the New Hampshire Department of

Corrections, serving a 2-6 year sentence for interfering with

child custody. On March 9, 2005, Pratt obtained a certified copy

of his criminal record from the New Hampshire Department of

Safety Division of State Police (“DOS”). Although Pratt’s record

correctly reflected his felony conviction for interference with

custody, it also stated in the comments section of the printed

record: “SEX OFFENDER PROGRAM.” Pratt immediately sent a letter

to defendant Jeffrey Kellett, the Criminal Records Administrator

at DOS, advising Kellett that he was not charged with or

Case 1:05-cv-00395-PB Document 10 Filed 05/24/06 Page 2 of 11
3In fact, the sex offender program was recommended for Pratt

by the sentencing court at Pratt’s original sentencing in 2001. 

In July of 2004, however, Pratt’s sentence was amended to delete

the specific recommendation that Pratt participate in the sex

offender program at the prison. 

3

convicted of a sex offense and therefore does not have to

register as a sex offender, and that the sex offender program at

the prison was not a part of his sentence.3 On March 23, 2005,

Kellett responded to Pratt in a letter indicating that the

notation in his record referred to his 2001 sentencing order, in

which the sex offender program had been recommended by the

sentencing court. Rather than apprise Kellett that his sentence

had been amended to delete that recommendation, Pratt sent a

letter to defendant Richard Flynn, the Commissioner of the DOS,

objecting to being publicly labeled as a “sex offender” by the

notation in his criminal record, and requesting that his record

be amended to remove the reference to the sex offender program. 

On April 5, 2005, Kellett responded to Pratt’s letter to Flynn

and attached an amended criminal record that stated in the

comments section: “COURT RECOMMENDS ATTENDANCE TO SEX OFFENDER

PROGRAM.” Pratt followed with this lawsuit.

I initially construed Pratt’s claim as an objection to being

required to register as a sex offender pursuant to N.H. Rev.

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4Pratt simply states that he has suffered from physical

assault and does not offer any facts describing the alleged

assault.

4

Stat. Ann. §§ 651-B:3-4. Upon review of Pratt’s amended

pleadings, however, it is clear that Pratt intended a claim that

his due process rights were violated as a result of being labeled

as a sex offender on his DOS criminal history record. Pratt

asserted a number of harms that either had occurred or would

follow from the damage to his reputation caused by the sex

offender label, including: exposure to contempt, the possibility

that his “good name” in the prison and community would be

damaged, anxiety, depression, physical assault,4 insomnia, and

pain.

Discussion

1. Due Process Claim - Sex Offender Label

Pratt alleges that he has been labeled as a sex offender by

the defendants, and that such label has caused him to suffer

stigmatization sufficient to create a violation of his liberty

interests under the Fourteenth Amendment. As this Court has

previously stated in another case filed by the plaintiff:

Three circuits have held that in certain 

circumstances, classification as a sex offender 

during imprisonment implicates a liberty interest 

and that prisoners must be afforded due process to 

Case 1:05-cv-00395-PB Document 10 Filed 05/24/06 Page 4 of 11
5

dispute such a classification. Chambers v. 

Colo. Dep’t of Corr., 205 F.3d 1237 (10th Cir. 

2000) (the stigma of classification as a sex 

offender plus the loss of the opportunity to earn 

the full amount of good time available to other 

inmates implicated a liberty interest); Kirby v. 

Siegelman, 195 F.3d 1285 (11th Cir. 1999) (the 

stigmatizing effect of being classified as a sex 

offender constituted a deprivation of liberty under 

the Due Process Clause); Neal v. Shimoda, 131 F.3d 

818 (9th Cir. 1997) (prison regulation that labeled 

inmates as sex offenders and required completion of 

a sex offender treatment program as a condition for 

parole eligibility created liberty interest and 

some due process protection for prisoners who had 

not been convicted of sexual misconduct).

In Kirby, a prisoner who had not been convicted of 

a sex offense was classified as a sex offender 

while in prison and required to undergo sex 

offender treatment as a pre-condition to parole 

eligibility. Kirby, 195 F.3d at 1288. The court 

concluded that the prisoner had a protected liberty 

interest in avoiding the sex offender label and the 

attendant requirement that he complete sex offender 

treatment. Id. at 1291. The court reasoned that 

“the stigmatizing effect of being classified as a 

sex offender constitutes a deprivation of liberty 

under the Due Process Clause.” Id. 

Pratt v. N.H. Dep’t of Corr., No. Civ. 05-cv-367, 2006 WL 995121

at *10-11 (D.N.H.) (Order Approving Report and Recommendation).

Pratt alleges here that the defendants’ actions in including

and refusing to remove reference to a “sex offender program” on

his criminal history record caused Pratt to be labeled as a sex

offender. Pratt further alleges that the stigmatizing effect of

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5To the extent that Pratt intends to make a speculative

claim about his post-imprisonment employment, I find that claim

is not yet ripe and recommend dismissal of the claim.

6

that label violated a liberty interest protected by the

Fourteenth Amendment. For purposes of preliminary review, I find

that Pratt has set forth sufficient facts to allow this claim to

proceed against defendants Kellett and Flynn. 

2. Due Process Claim - Employment

Pratt asserts a nonspecific violation of “a liberty interest

in employment” occasioned by the defamation Pratt asserts

occurred as a result of his criminal record history containing

reference to a “sex offender program.” Pratt is a prison inmate,

and I therefore assume that he is referring to his ability to

obtain a prison job.5 I construe Pratt’s claim as alleging a due

process violation in being denied prison employment. However,

“it is clear that unless state laws or regulations are to the

contrary, prisoners have no vested property or liberty rights to

either obtain or maintain prison jobs.” Dupont v. Saunders, 800

F.2d 8, 10 (1st Cir. 1986). Pratt therefore lacks any federal

due process claim with respect to being denied employment while

incarcerated and I recommend this claim be dismissed.

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7

3. Equal Protection Claim

Pratt asserts a claim that he has been “denied . . . equal

protection of the laws in violation of plaintiffs [sic]

fourteenth amendment right under the federal constitution. Where

plaintiff is not a member of the suspect class ‘sex offender’ 

[sic].” Liberally construing Pratt’s claim, I find that he

attempts to assert a claim that he has been treated differently

than other similarly situated non-sex offenders by the

defendants’ actions in causing the words “sex offender program”

to appear and remain on Pratt’s criminal record history. 

The Equal Protection Clause of the Fourteenth Amendment

mandates that similarly situated persons be treated alike absent 

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

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

Plyler v. Doe, 457 U.S. 202, 216 (1982)); accord Village of

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

protection claim where plaintiff alleges that [he] has been

intentionally treated differently from others similarly situated

and there is no rational basis for the difference in treatment).

Where, as here, no suspect classification is involved, “nor any

deprivation of fundamental rights, the ordinary equal protection

Case 1:05-cv-00395-PB Document 10 Filed 05/24/06 Page 7 of 11
8

test is extremely deferential. The standard formula is that a

non-suspect classification is unconstitutional only if no

legitimate basis can be imagined to support it.” Beauchamp v.

Murphy, 37 F.3d 700, 707 (1st Cir. 1994). 

Liberally construed, Pratt’s complaint alleges that he was

treated differently than other non-sexual offenders by the

inclusion of a reference to the sexual offender program on his

criminal history record. It appears that Pratt seeks to identify

himself as a “class of one” for equal protection purposes. Equal

protection claims may be brought by a “class of one” where the

plaintiff alleges that “[]he has been intentionally treated

differently from others similarly situated and that there is no

rational basis for the difference in treatment.” Village of

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

omitted); Donovan v. City of Haverhill, 311 F.3d 74, 77 (1st Cir.

2002). In order to state such a claim, the plaintiff must allege

that he has “been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment.” Id., citing Olech, 528 U.S. at 564. 

Here, although Pratt has alleged generally that the defendants

acted maliciously and intentionally, he has not provided any

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9

information about any other person who was similarly situated to

Pratt who was treated differently than he was, nor has he offered

sufficient specific facts to assert that the decisions of Kellett

and Flynn were entirely arbitrary or irrational. Therefore,

Pratt has failed to allege the elements of an equal protection

claim and I recommend that the claim be dismissed. See Wojcik v.

Mass. State Lottery Comm’n, 300 F.3d 92, 104 (1st Cir. 2002)

(rejecting an equal protection claim where claimant failed to

identify specific evidence concerning similarly situated

individuals who received different treatment . . . or evidence

that actions of defendants were result of “wholly arbitrary or

irrational” decision).

4. State Law Claims 

Pratt has alleged tort claims for defamation, libel,

slander, assault, and the intentional infliction of emotional

distress under state law based on the same facts as his civil

rights claim. Under 28 U.S.C. § 1367, this Court may exercise

supplemental jurisdiction over state law claims that arise out of

the same facts and circumstances as those alleged to give rise to

the federal claims properly before the Court. Because Pratt’s

tort claims meets that threshold, this Court will exercise its

Case 1:05-cv-00395-PB Document 10 Filed 05/24/06 Page 9 of 11
10

supplemental jurisdiction over Pratt’s claims that are based on

state law. See 28 U.S.C. § 1367.

Conclusion

For the reasons discussed herein, I recommend that the

deprivation of employment and equal protection claims in this

matter be dismissed and I decline to revisit my earlier

recommendation that the denial of access to the courts claim be

dismissed. I find, however, that Pratt has stated claims upon

which relief might be granted sufficient to allow the due process

claim based on being labeled as a sex offender and the state law

claims based on the facts alleged herein to proceed at this time. 

I will direct, in an Order issued simultaneously with this Report

and Recommendation, that those claims be served on defendants

Kellett and Flynn.

If this Report and Recommendation is approved, the claims as

identified and described herein will be considered to be the

claims raised in the complaint for all purposes. If Pratt

disagrees with the identification of the claims herein, he must

do so by objecting to this Report and Recommendation within ten

(10) days of receipt of this notice, or by properly moving to

amend his complaint.

Case 1:05-cv-00395-PB Document 10 Filed 05/24/06 Page 10 of 11
11

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 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: May 24, 2006

cc: Harvey Pratt, pro se

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