UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Bryan Bernard

v. Civil No. 07-cv-341-JL

Opinion No. 2008 DNH 124

New Hampshire Department

of Corrections et al.

O R D E R

Bryan Bernard, proceeding pro se and in forma pauperis, has

sued the New Hampshire Department of Corrections, its

Commissioner, and a number of the employees of the New Hampshire

State Prison, for their actions during Bernard’s incarceration at

that facility. The Magistrate Judge, conducting an initial

review of Bernard’s complaint, see 28 U.S.C. § 1915A; L.R.

4.3(d)(2), recommended that the action proceed on claims for

violations of his right to free exercise arising out of certain

defendants’ disciplining and retaliating against him for trying

to keep his beard unshaven per the dictates of his faith and,

ultimately, forcing him to shave nonetheless. Rept. & Rec. at 2. 

As to these claims, the Magistrate Judge noted, “the

complaint seeks injunctive and monetary relief for wrongs

committed by defendants as state actors in their official

capacities,” but that any such claims for money damages were

barred by the Eleventh Amendment. Id. at 19. So the Magistrate

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Judge recommended dismissal of the “official capacity claims for

monetary relief against the state defendants,” but recommended

that Bernard be allowed to proceed on his claims against those

defendants for injunctive relief. Id. at 20. The Magistrate

Judge also warned that:

If this recommendation is approved, the claims as

identified in this report and recommendation, will be

considered for all purposes to be the claims raised in

the complaint. If the plaintiff disagrees with the

identification of the claims herein, plaintiff must do

so by filing an objection . . . or properly moving to

amend the complaint.

Id. at 20-21. Bernard has since done neither, so this court has

adopted the Magistrate Judge’s recommendations wholesale.

Bernard was released from the New Hampshire State Prison on

March 13, 2008, having served the incarcerative portion of his

sentence in its entirety. The defendants now move to dismiss the

complaint, arguing that Bernard’s release has mooted his claims

for injunctive relief against the defendants, which were the only

claims that survived the Magistrate Judge’s report and

recommendation. “A case becomes moot if, at some time after the

institution of the action, the parties no longer have a legally

cognizable interest in the outcome.” Goodwin v. C.N.J., Inc.,

436 F.3d 44, 48 (1st Cir. 2006). Since Bernard has been released

from prison, enjoining the defendants from interfering with his

First Amendment rights will do nothing to protect his exercise of

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those rights, which he is free to enjoy now that the defendants

no longer have any authority over him. His claim for an

injunction against them is moot. “After all, a federal court may

not grant injunctive relief when, as in this case, intervening

events have eliminated any reasonable anticipation that the

aggrieved party will, in the future, be faced with recurrence of

the alleged harm.” Id. at 49.

Bernard does not seriously dispute this conclusion. 

Instead, he argues that the defendants violated his First

Amendment rights while he was in their custody, “which resulted

in damages, emotional, spiritual, [and] physical deterioration

among other negative results.” But the Magistrate Judge

recommended dismissal of Bernard’s claim for damages against the

defendants as barred by the Eleventh Amendment, and he did not

object to that recommendation. As the Magistrate Judge

cautioned, the failure to do so “irretrievably waive[d] any right

to review by the district court.” Santiago v. Canon U.S.A.,

Inc., 138 F.3d 1, 4 (1st Cir. 1998). Nor did Bernard seek to

amend his complaint to press any theory not subject to the

Eleventh Amendment bar.

Since Bernard’s claim for damages has been dismissed, all

that remains is his claim for injunctive relief, which is moot. 

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The defendants’ motion to dismiss (document no. 15) is GRANTED. 

The clerk shall enter judgment accordingly and close the case. 

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: July 7, 2008

cc: Bryan Bernard, pro se

Nancy J. Smith, Esq.

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