UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Albert R. Kuperman

v. 05-cv-185-PB

Commissioner, New Hampshire

Department of Corrections, et al.

REPORT AND RECOMMENDATION

Before the Court for consideration is a motion for a

preliminary injunction filed by Plaintiff Albert R. Kuperman, an

inmate at the New Hampshire Department of Corrections’ Northern

Correctional Facility. The Court held an evidentiary hearing on

the motion on June 15, 2005. 

Plaintiff presents two claims for relief in his motion. 

First, Plaintiff claims that the prison is wrongfully denying him

access to meals that accord with his religious beliefs as a

Jewish person. Second, Plaintiff claims that the prison has

failed to take steps to protect him from harm from other inmates. 

It is clear from the evidence presented at the hearing that

the Plaintiff did not exhaust his administrative remedies with

regard to his religious diet claim prior to seeking relief in

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1PPD 7.17 was entered into evidence at the hearing as

Defendants’ Exhibit A.

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this court under 42 U.S.C. § 1983. Therefore, Plaintiff may not

proceed on that claim at this time. See Porter v. Nussle, 534

U.S. 516, 532 (2002) (the exhaustion requirement of the Prison

Litigation Reform Act, 42 U.S.C. § 1997e(a), requires all inmates

seeking redress for prison conditions or occurrences to exhaust

prison grievance procedures prior to asserting a federal claim);

Booth v. Churner, 532 U.S. 731, 739 (2001) (same). Even if

Plaintiff had exhausted his administrative remedies, however, the

evidence supports the Defendants’ claim that the Plaintiff was

removed from his religious diet because he violated the

Department of Corrections’ Policy and Procedure Directives

(“PPD”) that govern the provision of religious meals to inmates. 

See NHDOC PPD 7.17, V, G(2)(d) (providing that religious diets

will be automatically suspended for six months when an inmate is

found to have consumed or been in possession of food items that

violated their approved religious diet).1 Plaintiff was accused

and found guilty of eating non-kosher chicken on May 15, 2005. 

Despite his claim that he was eating chicken from a soup that was

provided with his kosher meal, the documentary evidence supports

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a finding that the only way that Plaintiff could have obtained

chicken on the day in question was to obtain it from one of the

non-kosher meals served that day. See Defs.’ Ex. B. However

harsh the Department of Corrections’ policy appears with regard

to the suspension of religious meals for violations of the

approved religious diet, giving due deference to the prison’s

penological interests in maintaining order, the Court cannot say

that the prison’s policy is unnecessary. The Court finds that

the Plaintiff has not demonstrated that he is likely to succeed

on the merits of his religious diet claim. See Langlois v.

Abington Hous. Auth., 207 F.3d 43, 47 (1st Cir. 2000) (setting

forth the four-part preliminary injunction test); see also Auburn

News Co. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir.

1981) (a party seeking injunctive relief must independently

satisfy each of the four factors). 

With regard to Plaintiff’s failure to protect claim,

Plaintiff admitted at the hearing that he was not currently being

housed on the same block with the two inmates from whom he sought

protection. Therefore, the Court finds that injunctive relief is

not warranted on his failure to protect claim.

For the reasons discussed above, the Court finds that

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Plaintiff failed to demonstrate that he is entitled to injunctive

relief on either of his claims. Accordingly, the Court

recommends that Plaintiff’s motion for a preliminary injunction

(document no. 4) be denied.

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: June 16, 2005

cc: Albert R. Kuperman, pro se

Michael K. Brown, Esq.

 

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