UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin Hall

v. Civil No. 08-cv-493-JL

William Albrecht

REPORT AND RECOMMENDATION

Before the Court is Kevin Hall’s damages action (document

no. 1), alleging that defendant, former Cheshire County Attorney

William Albrecht, violated Hall’s rights by illegally causing a

deferred state prison sentence to be imposed. As Hall is a

prisoner, the matter is before me for preliminary review to

determine, among other things, whether the complaint states any

claim upon which relief might be granted. See 28 U.S.C. §

1915A(a); United States District Court District of New Hampshire

Local Rule (“LR”) 4.3(d)(2)(A).

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

Magistrate Judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

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construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

In March of 1998, then Cheshire County Attorney William

Albrecht sought to have a sentence of 3 1⁄2 - 7 years in prison,

which had previously been deferred, imposed on Kevin Hall. 

Albrecht’s efforts were successful and the sentence was imposed. 

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In December of 2001, however, the Superior Court granted Hall’s

state petition for a writ of habeas corpus on the grounds that

the imposed sentence was illegal, and released Hall from

incarceration. Hall now seeks to sue Albrecht for his actions in

illegally having the deferred sentence imposed.

Discussion

I. Prosecutorial Immunity

“Prosecutors are immune from litigation for those activities

closely related to the judicial phase of criminal proceedings for

actions that are within the scope of their prosecutorial duties.” 

Beck v. Plymouth County Super. Ct., 511 F. Supp. 2d 203, 206 (D.

Mass. 2007) (citing Imbler v. Pachtman, 424 U.S. 409, 420

(1976)). Prosecutors maintain immunity from suit even where they

can be shown to have acted in bad faith. See Celia v. O’Malley,

918 F.2d 1017, 1019 (1st Cir. 1990) (refusing to recognize a “bad

faith exception” to the scope of prosecutorial immunity as

defined in Imbler). Albrecht’s decision to seek imposition of a

particular sentence, even if the sentence is ultimately

determined to be illegal, is shielded from legal challenge by

prosecutorial immunity, and I recommend dismissal of this action

on that basis. 

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II. Statute of Limitations

Congress did not provide a statute of limitations for § 1983

actions, so federal courts must borrow the personal injury

limitations period and tolling provisions of the forum state. 

See Wilson v. Garcia, 471 U.S. 261, 276-80 (1985); Lopez-Gonzalez

v. Municipality of Comerio, 404 F.3d 548, 551 (1st Cir. 2005). 

In New Hampshire, all personal actions, other than slander and

libel, are governed by N.H. Rev. Stat. Ann. 508:4(I), which

provides a three-year limitations period. Hall alleges that his

rights were violated by Albrecht in 1998, and that his cause

became actionable in December of 2001, when the Superior Court

declared the imposition of his deferred sentence to be illegal. 

The limitations period in this matter, accordingly, began to run,

at the latest, in December of 2001, almost seven years before

this suit was filed. Because this suit was not filed within the

three-year time limit available to commence this action, I

recommend that it be dismissed as untimely.

Conclusion

As I have found that the sole claim in this action seeks

monetary relief against a defendant who is immune from such

relief, and is untimely filed, I recommend dismissal of this

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action. See LR 4.3(d)(2)(A)(i). 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: April 24, 2009

cc: Kevin Hall, pro se

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