Avery v. Comm'r, N.H. Dep't of Corr.

• Decision Date: 20 November 2020
• Docket Number: No. 2019-0051,2019-0051
• Parties: Clifford E. AVERY v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS
• Court: New Hampshire Supreme Court

173 N.H. 726

248 A.3d 1179

Clifford E. AVERY

v.COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS

No. 2019-0051

Supreme Court of New Hampshire, Merrimack.

Submitted: November 20, 2019

Resubmitted: July 20, 2020

Opinion Issued: November 20, 2020

Clifford E. Avery, self-represented party, by brief.

Gordon J. MacDonald, attorney general (Lisa L. Wolford and Anthony J. Galdieri, senior assistant attorneys general, on the brief), for the defendant.

New Hampshire Legal Assistance (Elliott Berry, Manchester, and Kay E. Drought on the joint brief), Disability Rights Center–New Hampshire, Inc., of Concord (Pamela E. Phelan and Todd R. Russell on the joint brief), and American Civil Liberties Union of New Hampshire Foundation, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the joint brief), as amici curiae.

Paul Blackmer, by brief, as amicus curiae.

Darrin Partlow, by brief, as amicus curiae.

HANTZ MARCONI, J.

The plaintiff, Clifford E. Avery, appeals an order of the Superior Court (Ruoff, J.) dismissing his complaint for breach of contract against the defendant, the Commissioner of the New Hampshire Department of Corrections (DOC or department). Avery argues that the trial court erred in concluding that his suit was barred by sovereign immunity and, alternatively, that he lacked standing. After the case was submitted, we directed the parties to provide supplemental briefing on the issue of sovereign immunity and sought amicus briefing. We now reverse and remand.

I

The following relevant facts are found either in the plaintiff's allegations, which we accept as true, or in the trial court's order, recited in the light most favorable to the plaintiff. Alward v. Johnston, 171 N.H. 574, 576, 199 A.3d 1190 (2018) ; see New England Backflow v. Gagne, 172 N.H. 655, 658, 233 A.3d 313 (2019) ; see also Beane v. Dana S. Beane & Co., 160 N.H. 708, 711, 7 A.3d 1284 (2010) (holding that, in ruling on a motion to dismiss, the trial court may consider, among other things, "documents attached to the plaintiff's pleadings").

Avery, an inmate at the New Hampshire State Prison for Men (NHSP), sued the DOC as part of a federal, class-action, 42 U.S.C. § 1983 lawsuit, and the federal district court found that conditions at the NHSP subjected inmates to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. See generally Laaman v. Helgemoe, 437 F. Supp. 269 (D.N.H. 1977) ; Laaman v. Warden, New Hampshire State Prison, 238 F.3d 14 (1st Cir. 2001). The lawsuit resulted in a consent decree requiring the DOC to provide certain services to inmates confined at the NHSP, regularly inspect prison conditions, and ensure that NHSP practices, including those related to food service, medical care, mental health care, sanitation, and maintenance, comported with specified standards. The consent decree was modified to resolve issues raised by Avery and the class of original plaintiffs in motions for contempt that alleged the DOC was violating the terms of the original decree. On April 23, 2001, the class of plaintiffs, including Avery, and the DOC entered into an agreement (Laaman Settlement Agreement), comprised of the terms of the modified consent decree, that settled the section 1983 lawsuit and terminated federal jurisdiction over the matter, specifying that the agreement "constitute[d] a settlement agreement enforceable by the courts of the State of New Hampshire."

In July 2018, Avery filed a "Petition for Enforcement of a Settlement Agreement," suing the department for breach of contract and seeking specific performance of the Laaman Settlement Agreement. Avery makes numerous allegations that conditions at the NHSP violate the terms of the Laaman Settlement Agreement. For example, Avery alleges that portions of the ventilation systems in multiple housing units are deteriorating and contain holes and rust, causing the circulation of "noxious and/or unhealthy air." He alleges that the prison is overcrowded with more than double the population permitted by relevant standards and that there is a lack of required toilet facilities, both of which contribute to the "the decrepit state of these housing units." He alleges that the NHSP pharmacy cannot fill prescriptions in a timely manner, that required programs are not being offered or are significantly understaffed, and that required inspections are not being undertaken. He alleges that "[c]ontaminated waste water, i.e., biological matter," leaks onto food preparation areas, meals, and the floor of the Food Service Department, and that the attempt to resolve this issue involved putting up tarps and hoses under the leak, which merely funnel the waste water directly onto the floors of the Food Service Department. Among other contentions, Avery additionally alleges that required counseling services, such as marital counseling, aggression management, and a pre-release program, are not being provided.

The DOC moved to dismiss Avery's complaint, arguing, among other things, that his suit was barred by sovereign immunity and that he lacked standing. Avery objected to the department's motion. The trial court granted the department's motion to dismiss, concluding that Avery's breach of contract action seeking specific performance of the Laaman Settlement Agreement was barred by sovereign immunity because RSA 491:8 (2010) (amended 2020) waived sovereign immunity only for contract actions seeking money damages. See RSA 491:8 ; Lorenz v. N.H. Admin. Office of the Courts, 152 N.H. 632, 635, 883 A.2d 265 (2005) ; Wiseman v. State, 98 N.H. 393, 397, 101 A.2d 472 (1953). The court alternatively concluded that dismissal was warranted because Avery failed to demonstrate an injury personal to himself, and, thus, lacked standing to sue for breach of the Laaman Settlement Agreement. For example, the trial court found that while Avery alleged a failure to provide required counseling services, he "has not alleged that he has or would participate in any of the described counseling." This appeal followed.

II

We apply our traditional standard of review for motions to dismiss to the legal issues presented. Alward, 171 N.H. at 580, 199 A.3d 1190. Specifically, we review issues of law de novo. Id.

We begin with the issue of sovereign immunity. The State is immune from suit in its courts without its consent. XTL-NH, Inc. v. N.H. State Liquor Comm'n, 170 N.H. 653, 656, 183 A.3d 897 (2018). As a State department or agency, the DOC is "cloaked with the State's sovereign immunity."¹ Id. (quotation omitted). Accordingly, the DOC is immune from suit in New Hampshire courts "unless there is an applicable statute waiving immunity." Id. (quotation omitted). "Any statutory waiver is limited to that which is articulated by the legislature; thus, New Hampshire courts lack subject matter jurisdiction over an action against the State ‘unless the legislature has prescribed the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted.’ " Id. (quoting Lorenz, 152 N.H. at 634, 883 A.2d 265 (brackets omitted)). Sovereign immunity is a jurisdictional question not to be waived by conduct or undermined by estoppel. Id. It is not a defense that must be affirmatively pled. Lorenz, 152 N.H. at 634, 883 A.2d 265.

RSA 491:8 provides a statutory waiver of sovereign immunity for contract actions against the State. RSA 491:8 ; accord Laws 2020, 12:2 (amending RSA 491:8, effective July 2020). Settlement agreements with the State are contractual in nature and thus will generally fall under the purview of RSA 491:8. See Poland v. Twomey, 156 N.H. 412, 414, 937 A.2d 934 (2007) ; see also RSA 491:8 ; Laws 2020, 12:2. At the time of the trial court's order, we had interpreted RSA 491:8 to provide a waiver of immunity only for contract actions seeking money damages against the State. See RSA 491:8 ; Lorenz, 152 N.H. at 635, 883 A.2d 265 ; Wiseman, 98 N.H. at 397, 101 A.2d 472. The State relied upon this interpretation of the statute in responding to Avery's appeal, arguing that the statute's limited waiver of immunity did not apply to his action, which seeks only specific performance of the Laaman Settlement Agreement.

We requested supplemental briefing from the parties and solicited amicus briefs on the issue of sovereign immunity. In July 2020, after these additional briefs were filed, RSA 491:8 was amended, and now explicitly waives the State's immunity for actions "founded upon any express or implied contract with the state, including specific performance and other equitable remedies that are not limited to money damages." Laws 2020, 12:2. Through this amendment, the legislature has made clear its intent to undo the effects of our prior cases interpreting RSA 491:8 as a waiver of sovereign immunity only for contract actions seeking money damages against the State. See id. See generally Lorenz, 152 N.H. at 635, 883 A.2d 265 ; Wiseman, 98 N.H. at 397, 101 A.2d 472. As a result of the July 2020 amendment, the State filed a motion to withdraw its defense in the instant appeal "that the Laaman Settlement Agreement cannot be enforced ... because such a remedy [of specific performance] has not been authorized by [the] State." We granted the State's motion to withdraw this defense. Thus, we need no longer decide if RSA 491:8, prior to its amendment in July 2020, waived sovereign immunity for Avery's suit.²

In its motion, however, the DOC "reserves all rights and does not waive any other argument that sovereign immunity may bar this action, including the argument that the Laaman Settlement Agreement is not the type of contract contemplated by RSA 491:8 (i.e., a contract for which a legislative appropriation exists or existed)." While the DOC is "reserv[ing]" and "not waiv[ing]" other arguments that sovereign immunity bars Avery's action, we do not understand the department to be pursuing any of these arguments in the instant appeal. Therefore, there are no additional...