This page is an unofficial LFoD record and is not legal advice. Verify the document against the official source before relying on it.
Richard R. Wescott v. Warden, New Hampshire State Prison
Brief
Case records
Open case pageDocket: 2022-0562
| Date | Record Text | Type | Party | |
|---|---|---|---|---|
| October 11, 2024 | Wescott v. Warden, N.H. State Prison | Opinion | Supreme Court | Pre-Reporter |
| September 12, 2024 | Richard R. Wescott v. Warden, New Hampshire State Prison | Brief | Warden, N.H. State Prison | |
| October 3, 2023 | Oct 3 2023 | Supreme Court oral argument calendar | - | |
| August 14, 2023 | Richard R. Westcott v. Warden, New Hampshire State Prison | Brief | ||
| February 10, 2023 | Richard R. Wescott v. Warden, New Hampshire State Prison | Brief | ||
| December 31, 2022 | 2022 Fourth Quarterly Status Report | Supreme Court case status list | - | |
| November 28, 2022 | 20220562 - Brief | Brief | ||
| Undated | 20220562 - Reply Brief for The Plaintiff - Reply brief Current page | Brief |
THE STATE OF NEW HAMPSHIRE
SUPREME COURT
PER AD)
Docket No. 2022-0562
Warden, New Hampshire State Prison
REPLY BRIEF FOR THE PLAINTIFF
Pro Se
P.O. Box #14
Concord N.H., 03302
RECEIVED
FEB 21 2023
NH SUPREME COURT
2EC°D NH SUPREME COURT
27S oni Ld
FEB 7123
TABLE OF CONTENTS
TABLE OF AUTHORITIES... - eww eee ewe ccc ee ewe weaned REPLY CONCERNING PRIVATE RIGHT OF ACTION TO SUE
3
REPLY CONCERING RSA 491:15......0ec cece cece e ee eed REPLY CONCERNING THE BIAS OF JUDGE KISSINGER
11
TABLE OF AUTHORITIES
Avery v. Comm'r N.H. Dep't Of Cor., 173 N.H.
T260 cee cece een c cee w eee tee ence cence ae eens esene 3 Brooks v. Trustees of Dartmouth College,
161
FNP « MP © = So
Am. Express Nat'l Bank v. Petralia, 2022 N.H.
LEXIS 25....cecceeeceeee rn Save the Lake Ass'n, v. City of Hillsboro,
158
Ohio; : App.3d 318.... cc cece ce cc ec ccc ew ween a ees
3
State v. Towle, 167 N.H. 315... cc www wee ee ee ee cll Vincent v. MacLean, 167 N.H. 132........... wee eee D RSA 491:15......... eee cee eee eect eee e eee
225
N.H. Superior Court Rule 9(b)........2. 00000 ee
0510
Laaman ExcerptsS..........e006- cette eee eee ee 0
4, 657, 8
CERTIFICATE OF SERVICE.... ccc eee e ccc e eee ewww eee ed CERTIFICATION OF COMPLIANCE.......0022 ee eee -----
14
REPLY CONCERNING PRIVATE RIGHT OF ACTION TO SUE
1. The defendent's interpretations on the plaintiff's
right of action to sue in the State Court's is nare#
row. This Court unambiguously held in Avery v.
Comm'r N.H. Deptt of Corr., 173 N.H. 726:
"The department counters that Avery "'does
not allege injury to himself; instead, he
speculates that the conditions he describes
harms all NHSP inmates.'" Further, the depart-
ment argues that Averv does not have standing
""because he does not have the right to repre-
sent the interest of the class of Laaman in-
mates who were subject to the Laaman Decree
and are third-party beneficiaries to the Laaman
Settlement Agreement." (Emphasis Added)
2. The Department of Corrections, hereafter boc, had
known that inmates, such as the plaintiff were and
are third-party beneficiaries in Avery, yet argue
the plaintiff is not entitled to sue.
3. This court further held in Avery:
“Settlement agreements are contractual in
nature and, therefore, are generally governed
by principles of contract law... A party to
a contract has a cognizable interst in having
the contract's promises performed, and an
alleged breach constitutes a legal injury to
that interest sufficient to confer standing."
4. In the matter Save the Lake Ass'n v. City of Hills~
boro, 158 ohio, App.3d 318 the appeals court held:
"The court concluded that the current inmates
were intended third party beneficiaries of the
prior consent decree and thus, entitled to seek
its enforcement. After reviewing the consent
decree, the court concluded that its language
indicated an express intent to confer a benefit
on all inmates, not just the eleven inmates
named in the complaint... this express inclu-
sivness manifested an intent to benefit future
inmates." (Restatement of Contracts, 313(2)(1).
5. This Court held in Brooks v. Trustees of Dartmouth
College, 161 N.H. 685:
"The third-party beneficiary doctrine is an ex=
ception to the general rule that a non-party to
a contract has no remedy for breach of contract.
Third-party beneficiaries are nonparties to a
contract who are nevertheless allowed to sue to
enforce. it because the parties intended them to
have that right." (Internal Citations Omitted)
6. The State's Appendix 128 holds in pertinent part:
"31. No inmate shall be deemed to have waived
any claim or action which he may have on
his own behalf against the defendant, their
agents, or their employees to remedy viola-
tions of his legal rights, based on the
execution of this agreement."
7. In the Brief for the Warden, page 6(I), the question:
presented to this Court in pertinent part ask's,
"Does the Laaman Settlement Agreement provide a pri-
vate right of action for each inmate at the New Hamp~
shire State Prison to individually seek to enforce
alleged breaches of the agreement...? In Brooks v.
Trustees of Dartmount College, this Court opined,
"A third-party relationship exists if: (1) the con-
tract calls for a performance by the promisor, which
will satisfy some obligation owed by the promisee to
a third party: or (2) the contract is so expressed
as to give the promiser reason to know that a benefit
to a third party is contemplated by the promisee-as
one of the the motivating causes of his making the
contract." €6 above could not be any more clear that
the plaintiff has standing for this matter to pro-
ceed.
8. In conclusion of this section, the plaintiff would
point out that the defendant, in its brief, made
10.
li.
12.
several innuendoes concerning the legitmacy of the
plaintiff's claims raised in the court below. The
plaintiff will not entertain a response to these
innuendoes as the court below never joined issue or
addressed any claim raised by the plaintiff. This is
the reason for the instant matter.
REPLY CONCERNING RSA 491:
15
Superior Court Rule 9 "Answers: Defenses; Forms of
Denials" paragraph {b) holds in pertinent part:
"Instead of an answer, a person responding
to a pleading to which a response is
required may, within 30 days after the
person has-been served with the pleading
to which the answer or response is required
files a Motion to Dismiss."
The plaintiff would estimate that in over 90% of his
litigation in the courts below, his litigation was
ended pursuant to only an adversaries motion to
dismiss which had not joined issue on any of the
claims raised by the plaintiff. In his objections
to said motions to dismiss, although no court below
has ever cited reviewing said objection, had denied
the plaintiffs action, usually 'for the reasons set
forth in the motion to dismiss.'
The plaintiff, completely knowledgable of this
Statistical fate, requested the court below to
provide a decision in writing, stating the facts
found and the rulings of law. This did not ocurr.
This Court held in Vincent vii Maciéan, -167°N.H:
132:
resin
"There is no doubt that prisoners have a
constitutional right to access to the
courts and that states must insure that
inmate access to the courts is adequate,
effective, and meaningful." Internal
Quotation Omitted.
13. The defendant holds that the motion to dismiss had
"explained in detail why dismissal was required."
On page ll, paragraph B. the defendant wrote:
"For example, Mr Wescott believes that
PTSD should be treated with "psychotherapy
that he alleges the state Prison does not
provide, despite being informed that his
meetings with a doctor are in fact psycho-
therapy. Similarly, Mr. Wescott believes
that the State Prison does not meet fimental]
health personnel staffing requirements in
the Laaman Settlement Agreement, despite
State Prison staff informing Mr. Wescott
the the State Prison has positions that
exceed requirements."
14. Being the deféndant only provided these two examples,
the plaintiff will respond to only these.
‘State's Appendix 276 is an Inmate Request slip_ sent to Dr. Brown, the plaintiff's provider. The plaintiff met with Dr. Brown for approximately
15
minutes once every two or three months. Dr. Brown
is the provider in which the plaintiff declared
that he will kim himself when he feels he has no
purpose. Dr. Brown, as indicated in the Inmate
Request Slip does state that he felt the meetings
attended by the plaintiff were considered psycho-
therapy. States Appendix 419, 923 is an excerpt
from the 2001 Laaman Settlement Agreement. It
mandates:
"Within 24 months from the date of final
execution of this agreement, any inmate
who receives psychotropic medications shall
have a formal treatment plan which shall
specifically set forth the timeframe for
follow-up appointments for the purpose of
monitoring. Such treatment plans shall be
made part of the inmate's medical record."
Also significant within the same document is seen
in 420 which mandates:
"By July 1, 2002, the defendants shall provide
a clinician for the MHU who has specific exper-
tise in PTSD..." -
State's Appendices 414 & 415 are excepts from the
Laaman Concent Decree. These documents hold in
pertinent part:
"63. Defendants shall maintain a staff which
includes, at a minimum:
(a) One full-time Ph.D Psychologist who shall
be the on-site clinical and administrative
Chief of the NHSP Mental Health Unit in
coordination with the Director:
(b) As of July 1, 1990: Three (3) Master Degree
Level Psychologist and four (4) Social
Workers, or their equivalent in terms of
education and/or experience: and sixteen
(16) additional counselors. The above staff
members shall provide Mental Health and
Case Management Services to inmates on a
full-time basis."
As seen in State's Appendix 356, which is a
grievance filed by the plaintiff, he was indeed
told that "We have positions that exceed these
requirements."
In his objection to the defendant's motion to
dismiss, the plaintiff provided the court below
(as exhibit 66), State's Appendix 342, a copy
of an excerpt from the 2001 Laaman Settlement
Agreement, holding:
"B. Staffing for the Mental Health Unit
Defendant's shall staff the Mental Health
Unit (MHU) with at least eight (8) full
time equivalent qualified, non-prescriber
clinicians, as described in paragraphs 63 (a) and 63 (b) of the 1990 Settlement agreement. The eight positions shall include the clinician position required by paragraph 19 of the
2001
Settlement Agreement."
On November 18, 2021] the plaintiff forwarded an
inmate request slip, State's Appendix 372, to
Dr. Wendy Martin inquiring about mental health
personnel. She responded in pertinent part,
"There are currently 3 Full time NP's in MHU
plus 1 who works per diem.. and 1 psychiatrist
in outpatient." The psychiatrist was Dr. Brown
who walked off the job without notice. Further,
Since the plaintiff's incarceration, as he noti-
fied the court below, the DOC has not once honored
the staffing mandates set by the court. To wit,
the DOC states the staffing exceeds requirements,
however, it is not the requirements of the train-
ing, experience, educational and certification
levels mandated by Laaman. The mandated clinician
having experience in treating PTSD was NEVER hired.
The mandated staffing requirements have never been
met. The defendant believes it is numbers, and it
is, but it is also quality and training of personell.
Concerning the "psychotherapy" the defendant holds
the plaintiff was receiving from Dr. Brown, as
held in 914 above, where the plaintiff has been
on psychotropic medications since his enrty into
the prison, Dr. Brown wasrequired to provide and
file a treatment plan of the treatment the plain-
tiff was receiving. No such treatment plan exists.
On November 18, 2021 the plaintiff filed a Formal
Complaint with Dr. Martin, Dr. Browns supervisor,
15.
1ié.
States Appendix 371, concerning this issue. Dr.
Martin responded in pertinent part, "Typically,
in prior years, mental health clinicians completed
treatment plans for patients, rather than having
providers complete them, but you should have had
a_treatment plan regardless." On Decemeber 8,
2021 the plaintiff filed a grievance with Ms.
Paula Mattis, Dr. Martin's supervisor, State's
Appendix 366. Ms. Mattis responded, "I don't know
if Dr. Brown has responded yet, but I will follow
up with him." As stated, Dr. Brown walked off the
job.
If the plaintiff had been receiving psychotherapy
as claimed by the defendant, they were mandated to
record the sessions, and the progress in treatment
plans, which Dr. Brown and others did not do. The
defendant never hired the PTSD specialist, nor has
met, since 1998, the staffing requirements that have
been mandated by Laaman, not subject to their own
choosing. Indeed the defendant had informed the
plaintiff of many things. Indeed the plaintiff would
have discredited each one if afforded an opportunity
to do so in the court below.
The point of the plaintff is this. Each of the docu-
ments discussed in this response were documents that
had been submitted by the defendant. They in turn had
received them from the plaintiff during his pleadings
in the court below. Meaning, the court below also had
these documents. Just the few aforementioned documents
submitted by the defendant are proof that the plain-
tiff had not been receiving psychotherapy as the defen-
dant holds that he was; , -and that the -mandated--staffing ~
17.
18.
19.
pursuant to Laaman has not been fulfilled. Again,
these are only the two items discussed by the defen-
dent as being untrue allegations by the plaintiff,
therefore, only the two items were discussed.
As this Court held, the plaintiff does indeed
have "a constitutional right to access to the courts
and the states must insure that inmate access to the
courts is adequate, effective, and meaningful."
If the court below offers, within their rules, an
option for a defiendant to either respond on the
merits of a claim against them, or to simply file
a motion to dismiss only citing general denials,
the plaintiff has not been granted adequate and
meaningful access to the courts. Further, when the
court below has been requested, pursuant to statute,
to provide an answer in writing for its reasoning,
and that also has been denied the plaintiff, his
adequate and meaningful access has again been denied.
Pursuant to the superior court rules, a plaintiff
has no constitutional rights to an even playing field. The plaintiff has presented this Court with two examples, from the defendant's own appendices, that cannot be disputed, that, in fact, the Plaintiff has been subjected to a breach in a contract in where he suffered life threatening injuries due directly to the breach. The plaintiff would argue that superior court rule 9(b) is unconstituional, and if RSA 491:
15
is said not to provide the plaintiff with a written
answer, he would argue the statute also to be unconsti-~
tutional.
20.
21.
REPLY CONCERNING THE BIAS OF JUDGE KISSINGER
The defendant held on page 24, "Mr. Wescott appears
to allege that Judge Kissinger is biased based soley
on certian decisions in this underlying matter and
in other matters in which Judge Kissinger made
decisions that were adverse to Mr. Wescott... How-
ever, this Court has recognized that judicial rulings
alone, whether in current or prior proceedings,
“almost never constitute a valid basis for a bias or
partiality motion." The plaintiff agrees.
Pursuant to this Court's State v. Towle, 167 N.H.
315 decision indicating that a no-contact
order imposed on a stand committed sentence
constitutes an illegal sentence, which must be
corrected, the plaintiff filed for relief in his
sentencing court (Hillsborough-North) (Judge -Kissen-
ger). Although the plaintiff was serving one illegal
sentence, 97-9787 and would be paroled into another
illegal sentence, 97-0788, both being stand committed
sentences, Judge Kissinger denied the plaintiff any
relief what so ever, holding only that the relief
was denied 'for reasons set out by the state in its
objection.' This inaction of a sitting superior court
judge left the plaintiff serving an illegal and there-
fore unconstitutional sentence, as determined by this
Court, and being the plaintiff was paroled into his
next "illegal" sentence, the plaintiff continues to
serve an illegal and unconstitutional sentence due to
the direct denial of meaningful and adequate access
to the court by judge Kissinger. This has<reached far
beyond what the defendant refers to as an adverse
decision by judge Kissinger.
22.
23.
24.
This Court held in Am. Express Nat'l Bank, v. Petralia,
LEXIS 25:
"In ruling on a motion to dismiss, the trial
court is generally required to determine
whether the allegations in the plaintiff's
pleadings state a basis upon which reliéf may
be granted, and to accept all facts pleaded by
the plaintiff as true and construe such facts
in plaintiff's favor. When however, a motion
to dismiss challenges the plaintiff's standing,
the trial court must look beyond the unsubstan-
tiated allegations and determine, based on the
facts, whether the plaintiff has sufficiently
demonstrated its right to claim relief."
The court below, and the defendant were made well
aware of this Court's decision in Avery concerning
the plaintiff's standing. Further, as outlined above
utilizing the defendant's appendices, the plaintiff
had presented facts, that the court below was to
accept as true and construe said facts in the plain-
tiff's favor.
The defendant was not held accountable to answer any
of the plaintiff's claims on the merits, and the
superior court enables this within their rules.
Wherefore, the plaintiff prays that this Honorable Court
grant the requested relief of the plaintiff and allow him
the opportunity for an adjudication on the merits of his
claims against the defendant, in a court that will allow
for adequate-and meaningful. adjudication on the merits
of the claims advance, with an unbiased judge.
Respectfully,
Dated: February 17, 2023 AA pd, KC
renar - WeSCO
Pro Se
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Reply Brief was mailed to Attorney O'Donnel at 33 Capitol St., Concord 'N.H., 03301
‘ i
Dated: February 17, 2023 f D2
o
CERTIFICATION OF COMPLIANCE
I, Richard R. Wescott, hereby certify that pursuant to
N.H. Supreme Court Rule 26(7), that the accompanying
Reply Brief contained approximately 2512 words. The
plaintiff relies on hand counting each page.
Dated: February 17, 2023 WZ et pee