Palermo v. Church, Doc. No. 218-2012-CV-722 (Rockingham Super. Ct., October 5, 2012) (Delker, J.)

Pages: 1 2 3


The State of New Hampshire

Superior Court

Rockingham, SS.




NO. 218-2012-CV-O722


On May 21, 2012, the plaintiff filed a pro se petition for access to public records. The petitioner was allowed to file the petition without payment of the court filing fee because he alleged he was indigent due to the fact that he was incarcerated. The plaintiff, who was an inmate at the Rockingham County House of Corrections, alleged that he requested a complete copy of his inmate from the superintendent on April 20, 2012. The plaintiff alleged that the superintendent ignored his request for records. Stephen Church, the Superintendent for the Rockingham County House of Corrections, through the Rockingham County Attorney's Office, filed a written response to the petition. The respondent asserted that he had not received any request for records from the petitioner before being served with the petition filed in this court. The respondent promptly provided the petitioner a copy of his inmate file and instructions on how to obtain his medical records, which were not in the custody of the jail. On June [2] 19, 2012, the petitioner wrote to the Court indicating that he intended to pursue the current litigation because the respondent had not provided all of the requested records.

The matter was scheduled for a hearing on June 28, 2012. The petitioner did not appear at that hearing. The respondent proffered that he had refused transport to the hearing despite an order of the Court that he be transported from Cheshire County House of Corrections. As a result, this Court denied the petition and ordered the petitioner to pay attorney's fees and costs.

The petitioner filed a motion to reconsider. In that motion, supported by an unsworn "affidavit," he asserted he had not refused transport and that he intended to pursue the litigation. Based on these representations, this Court ordered a hearing on the motion to reconsider and issued a new order to transport the petitioner to the hearing. The matter was scheduled on today's date.

The respondent appeared in person and through counsel but the petitioner once again did not appear at the hearing. The respondent presented sworn testimony at the hearing today regarding the circumstances of the petitioner's refusal to be transported for the first hearing. The respondent also presented offers of proof regarding the petitioner's refusal to be transported for the hearing on today's date. On both occasions, the Sheriff's Office sent a transport to the facility where the petitioner was being held.

The respondent has requested fees and costs based on the defendant's conduct. The Court finds that the petitioner has been given the opportunity to present his case now on two separate occasions. The Court issued orders of transport and the Sheriff sent a transport to ensure the petitioner could be present in court to argue his case. [3] Both time he refused to comply with that transport order. Based on these factors the Court denies the petitioner's motion to reconsider. Further, the Court finds that the lawsuit and motion to reconsider was filed "in bad faith" and is "frivolous, unjust, vexatious, wanton, or oppressive." See RSA 91-A:8, I-a (Supp. 2011). As a result of the petitioner's actions, the respondent was required to file a written response and to appear at the hearing. In fact, the respondent, Superintendent Church, appeared at the hearing today in person despite the fact that he was on vacation. In addition, the county incurred considerable cost to send a transport to both Cheshire County and the New Hampshire State Prison. Based on these findings, the Court determines that the respondent is entitled to be awarded attorney's fees for the cost of defending this action. The Court is also ordering the petitioner to reimburse the cost of the transports on both occasions. See N.H. Super. Ct. 59. If the Court were to allow the petitioner's actions to pass without sanction, there would be no consequences for an inmate seeking to harass the jail with basely Right-to-Know requests. The present petition is dismissed with prejudice and the respondent may submit appropriate paperwork establishing the attorney's fees and costs associated with the defense of this action, including the cost of the transport for both hearings.


   10/5/2012       /s/   

DATEN. William Delker

Presiding Justice