1The following HCDOC officers and employees are named as

defendants in the body of the complaint: Superintendent James

O’Mara; Classification Supervisor William Raymond; HCDOC Medical

Department; Medical Doctor Ward; Nurse Jane Doe; and Corrections

Officer Richards, Dickerson, Shultz, Gordon, Cruze, Grizil and

John Doe. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Warren R. Picard

v. Civil No. 05-cv-234-SM

Hillsborough County Department

of Corrections, et al.

REPORT AND RECOMMENDATION

Proceeding pro se and in forma pauperis, plaintiff Warren R.

Picard brings this civil rights action pursuant to 42 U.S.C. §

1983, alleging that defendants have abridged his rights under the

First, Eighth and Fourteenth Amendments to the United States

Constitution (document no. 1). Named as defendants are several

officers and employees of the Hillsborough County Department of

Corrections (“HCDOC”).1 

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

Case 1:05-cv-00234-SM Document 18 Filed 10/21/05 Page 1 of 17
2

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). For the reasons stated below, I find that

Picard has alleged an Eighth Amendment excessive use of force

claim against Richards (Count II) and First Amendment retaliation

claims against Raymond and Richards (Counts II and III). I

recommend dismissal of all remaining claims.

Picard’s motion for reconsideration (document no. 15) is

denied as moot as he is no longer incarcerated and has failed to

show cause why his request for preliminary injunctive relief

should be granted.

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by the

plaintiff and inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(stating the “failure to state a claim” standard of

review and explaining that all “well-pleaded factual averments,”

not bald assertions, must be accepted as true). This review

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3

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988). 

Background

Construing the complaint in the light most favorable to

Picard, the material facts are as follows. Picard was released

from the HCDOC on October 18, 2005. This action stems from a

series of events that occurred during his incarceration at the

HCDOC in 2004 and 2005. During that time, prison officials

allegedly subjected him to numerous constitutional deprivations

in violation of his rights under the First, Eighth and Fourteenth

Amendments to the United States Constitution. 

Defendants allegedly violated Picard’s rights by denying him

adequate medical care, subjecting him to excessive use of force

and retaliation and failing to protect him from attack by other

inmates. Defendants further violated his rights by denying him

certain security classifications in retaliation for his

prosecution of civil rights actions against the HCDOC. 

Picard brings this action pursuant to Section 1983, alleging

that defendants’ acts and omissions rise to the level of

constitutional deprivations under the First, Eighth and

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Fourteenth Amendments. 

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In

order to be held liable for a violation under Section 1983, a

defendant’s conduct must have been a cause in fact of the alleged

constitutional deprivation. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056, 1061-62

(1st Cir. 1997). The premise of Picard’s Section 1983 action is

that prison officials subjected him to the following

constitutional deprivations in violation of his federally

protected rights under the First, Eighth and Fourteenth

Amendments.

A. Eighth Amendment Claims

1. Denial of Adequate Medical Care

Picard alleges that while he was incarcerated at the HCDOC

in 2004, Dr. Ward and Nurse Jane Doe denied him an adequate

tuberculosis screening test. Because of his allergy to the

Case 1:05-cv-00234-SM Document 18 Filed 10/21/05 Page 4 of 17
2The 2002 chest x-ray was taken during Picard’s prior

incarceration at the HCDOC.

5

tuberculosis skin test, he required a chest x-ray in order to

rule-out the disease. Rather than providing Picard with a

current chest x-ray, defendants allegedly relied upon a chest xray taken in 20022, which confirmed that he had tested negative

for tuberculosis. According to Picard, defendants’ actions rise

to the level of deliberate indifference to his medical needs in

violation of the Eighth Amendment (Count I).

To state an Eighth Amendment claim premised on inadequate

medical care, “a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to

serious medical needs.” See Estelle, 429 U.S. at 97. In order

to be found deliberately indifferent, a prison official “must

both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also

draw the inference.” Id. See Farmer v. Brennan, 511 U.S. 825,

837 (1994). Deliberate indifference may be manifested by prison

doctors in their response to the prisoner’s needs or by prison

personnel “intentionally denying or delaying access to medical

care or intentionally interfering with the treatment once

prescribed.” Estelle, 429 U.S. at 104-05. 

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The Eighth Amendment is not coterminous with a medical

malpractice claim. See Forbes v. Edgar, 112 F.3d 262, 266 (7th

Cir. 1997). “[C]ourts have consistently refused to create

constitutional claims out of disagreements between prisoners and

doctors about the proper course of a prisoner’s medical

treatment, or to conclude that simple medical malpractice rises

to the level of cruel and unusual punishment.” Watson v. Caton,

984 F.2d 537, 540 (1st Cir. 1993). 

As to the second element, “[a] ‘serious medical need’ is one

‘that has been diagnosed by a physician as mandating treatment,

or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.’” See Mahan v.

Plymouth County House of Corrections, 64 F.3d 14, 17-18 (1st Cir.

1995)(quoting Gaudreault v. Salem, 923 F.2d 203, 208 (1st Cir.

1990)). “Inadequate treatment of a serious nature can qualify,”

Forbes, 112 F.3d at 266, as can the exposure of inmates to a

serious, communicable disease that poses an unreasonable risk of

serious damage to the prisoner’s future health, see Helling v.

McKinney, 509 U.S. 25, 33 (1993). 

Construed liberally, the complaint fails to allege

sufficient facts to support an Eighth Amendment claim for the

denial of adequate medical care. First, Picard has not

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7

identified a serious medical need or condition. He has not

alleged that he suffered an allergic reaction to a tuberculosis

screening test administered by HCDOC officials. Nor has he

alleged exposure to tuberculosis or any other communicable

disease or that his future health has been unreasonably

endangered. Second, he has not demonstrated deliberate

indifference with regard to the defendants. Even assuming

defendants improperly relied upon a 2002 chest x-ray, there is no

indication that they knew of any “substantial risk of serious

harm” to Picard and disregarded that risk by failing to take

reasonable measure to abate it. See Farmer, 511 U.S. at 847. 

Picard has not alleged that defendants knew of any diagnosed

active cases of tuberculosis at the HCDOC or other conditions

that would have created a risk of infection. Even if Picard were

exposed to tuberculosis during his incarceration at the HCDOC,

the failure of medical department officials to detect an active

case of tuberculosis would amount to, at most, negligence, which

is not actionable under Section 1983. See Gibbs v. Grimmette,

254 F.3d 545, 550 (5th Cir. 2001) (prison officials did not act

with subjective deliberate indifference by refusing detainee’s

request for tuberculosis skin test, even though detainee

subsequently tested positive for tuberculosis). I conclude

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therefore that Picard has failed to state an Eighth Amendment

claim premised upon the denial of adequate medical care and

recommend that this claim be dismissed (Count I).

2. Excessive Use of Force

Picard alleges that while he was being transported from his

cell in Housing Unit 1-E on May 8, 2005, Richards abridged his

Eighth Amendment rights by subjecting him to excessive and

unjustified use of force (Count II).

Unjustified force itself does not rise to the level of

constitutional violation. See Fleming v. Multnomah County, No.

03-462, 2004 WL 1211924, slip. op at *3, (D. Or. June 1, 2004).

To state an Eighth Amendment claim for the use of excessive force

by prison officials, an inmate must demonstrate “unnecessary and

wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,

319-20 (1986). The primary issue is whether the force was

applied in a good faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm. See Hudson v.

McMillian, 503 U.S. 1, 7 (1992)(citing Whitley, 475 U.S. at 320-

21). To prevail on an excessive force claim, a plaintiff must

show that the alleged use of force is objectively sufficiently

serious or harmful enough to be actionable. Hudson, 503 U.S. at

8; accord United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999). 

Case 1:05-cv-00234-SM Document 18 Filed 10/21/05 Page 8 of 17
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An excessive force claim may be established even if the plaintiff

does not suffer serious or significant injury, if he can

demonstrate that the amount of force used is more than de

minimis, or otherwise involves force “repugnant to the conscience

of mankind.” Hudson, 503 U.S. at 9-10.

On May 8, 2005, Balles allegedly charged Picard with

refusing to lock-down and directed a response team to remove him

from his cell and transport him to another unit for purposes of

awaiting a disciplinary hearing. The response team included

Williams, Whitney and Richards. Richards cuffed Picard and

Whitney shackled him. Although Picard offered to cooperate, 

Richards forced his hands up toward his lower back, causing him

pain, and stated “Shut up or I will hurt you more.” Whitney

purportedly remained silent during the entire episode and the

record is silent as to whether he or Williams observed Richards’

actions. While Picard was being transported, Richards allegedly

continued to inflict pain on him despite his cooperation. When

Picard explained to Richards that he was not resisting, Richards

applied greater pressure, thereby causing Picard more pain. 

Nothing in the record suggests that Picard inflicted harm on

others or otherwise provoked the use of force or posed an

immediate threat to the safety of the corrections officers or

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security of the prison. 

After Richards transported Picard to the medical unit to

await his hearing, Picard was uncuffed. He requested to see a

nurse and was given Motrin and Tylenol to treat his bleeding and

swollen wrist. He received further treatment on May 13, 2005 by

Nurse Jane Doe who advised Picard of the possibility that he had

nerve damage. On June 6, 2005 he was evaluated by Dr. Ward who

gave him additional Tylenol and explained that “nerve problems

take awhile to go away.” If true, these allegations may well

give rise to an Eight Amendment excessive force claim against

Richards (Count II). 

3. Failure to Protect

Construed liberally, the complaint alleges that defendants

abridged Picard’s Eighth Amendment rights by placing him in

danger and failing to protect him from attack or threat of attack

by other inmates (Count IV). 

The Eighth Amendment imposes a duty on prison officials to

protect inmates from violence at the hands of other prisoners. 

See Farmer, 511 U.S. at 833 (quoting Cortes-Quinones v. JimenezNettleship, 842 F.2d 556, 558 (1st Cir. 1988)). “It is not,

however, every injury suffered by one prisoner at the hands of

another that translates into constitutional liability for prison

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officials responsible for the victim’s safety.” Id. at 834. 

“Rather, liability attaches only when two requirements are met”. 

Espaillat v. Mousseau, Civ. No. 03-338-SM, 2004 WL 2915287, slip

op. at *2 (D.N.H. Dec. 16, 2004). First, the alleged deprivation

must be objectively serious, that is, showing that the inmate is

incarcerated under conditions posing a substantial risk of

serious harm. See Burrell v. Hampshire County, 307 F.3d 1, 7-8

(2002). Second, the official involved must have had a

sufficiently culpable state of mind, described as “deliberate

indifference” to inmate health or safety. Id. “[A] prison

official ‘cannot be found liable . . . for denying an inmate

humane conditions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.’” Espaillat, Civ. No. 03-

338-SM, 2004 WL 2915287, slip op. at *2 (citing Farmer, 511 U.S.

at 837).

Picard first alleges that while he was in protective custody

on or about June 2-6, 2005, a general population inmate named

Perez came to his cell door and stabbed him with a pencil. He

has not identified the nature and extent of his injury, if any,

Case 1:05-cv-00234-SM Document 18 Filed 10/21/05 Page 11 of 17
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that resulted from the attack. Nor has he identified a

particular officer or actions taken by a particular officer that

caused him to be subjected to a serious or unreasonable risk of

harm. Picard next alleges that on June 6, 2005, his cell door

was mistakenly unlocked and a general prison population inmate

named Mann attempted to kick-in his door and attack him. Again,

he has not identified any officer that failed to adequately

protect him. Nor has he alleged that any officer knew of and

disregarded an excessive risk to his health or safety. With

regard to both incidents, I conclude that Picard has not

adequately alleged the requisite deliberate indifference on the

part of a particular officer. Accordingly, I find that he has

failed to allege sufficient facts to state an Eighth Amendment

failure to protect claim for purposes of surviving preliminary

review and therefore recommend dismissal of this claim (Count

IV).

B. First Amendment Claims

1. Disciplinary Retaliation

Picard alleges that defendants abridged his First Amendment

rights by subjecting him to excessive force and denying him a

certain classification or status, all in retaliation for his

filing a civil rights action against the HCDOC (Count III). 

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“[I]t is well-established that prison officials must provide

inmates access to the courts, and prison officials may not harass

or retaliate against an inmate for exercising his right of access

to the courts.” Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir.

1996)(internal citations omitted). The First Circuit has

recognized that retaliation against an inmate for the exercising

his right of access to the courts violates his First Amendment

rights. See Ferranti v. Moran, 618 F.2d 888, 891-92 (1st Cir.

1980)(“[A]ctions otherwise supportable lose their legitimacy if

designed to punish or deter an exercise of constitutional

freedoms.”). To prevail on a claim of retaliation, Picard must

show that: (1) he had a First Amendment right; (2) defendants

took an adverse action against him; (3) with the intent to

retaliate against him; and (4) the retaliatory act caused the

injury for which he is seeking relief. See Thaddeus-X v.

Blatter, 175 F.3d 378, 394 (6th Cir. 1999); McDonald v. Steward,

132 F.3d 225, 231 (5th Cir. 1998). 

Picard alleges that Classification Supervisor William

Raymond denied him a certain classification or status in

retaliation for his prosecution of civil rights actions against

the HCDOC. To the extent the decision to deny Picard a

classification was made in reprisal for his exercise of

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constitutionally protected First Amendment freedoms, he has

alleged sufficient facts for purposes of preliminary review to

establish a retaliation claim. Picard further alleges that

Richards used excessive and unjustified force against him, as

described above, in retaliation for his filing of a civil rights

action against the HCDOC. If true, Picard’s allegations may well

give rise to viable First Amendment retaliation claims against

Raymond and Richards (Counts II and III). Because Picard has

failed to allege sufficient predicate facts in support of his

First Amendment claims against O’Mara, Dickerson, Shultz, Gordon,

Cruze, Grizil, Richards and John Doe, I recommend dismissal of

the claims against them.

II. Municipal Liability

Construed liberally, the complaint names the HCDOC, a

municipal entity, as a defendant in this action. Municipalities

and local government entities are “persons” within the meaning of

Section 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 

690 (1978). A municipal entity cannot be held liable under

Section 1983 on a theory of respondeat superior or vicarious

liability; rather the municipality itself must proximately cause

the constitutional injury, through promulgation or tacit approval

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15

of a policy or custom. See City of Canton v. Harris, 489 U.S.

378, 385 (1989). To state a viable Section 1983 claim, a

plaintiff must allege in substance that the challenged municipal

custom or policy was the “moving force” behind the constitutional

violations. See Board of the County Comm’rs v. Brown, 520 U.S.

397, 404 (1997); McCabe v. Life-Line Ambulance Serv., 77 F.3d

540, 544 (1st Cir. 1996).

If Picard intends to pursue claims against the HCDOC he

must, at a minimum, allege that his constitutional deprivations

were the product of a municipal custom or policy. Even liberally

construing the complaint, I cannot reasonably conclude that the

wrongful conduct ascribed to the defendants was the product of

any unconstitutional municipal custom or policy. Instead, the

complaint plainly alleges that the wrongful conduct to which

Picard was subjected resulted from the actions taken by

individual defendants and not as the result of a policy

statement, ordinance, regulation or officially adopted decision. 

See Monell, 436 U.S. at 690. Nothing in the complaint

demonstrates how the HCDOC was the “moving force” behind the

actions or omissions by the defendants. Accordingly, I conclude

that the complaint fails to state a viable claim premised upon

municipal liability and, therefore, recommend that the HCDOC be

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16

dismissed from this action.

Construed liberally, the complaint names each defendant in

his official capacity as an officer or employee of the HCDOC. 

Official capacity suits against officers of an agency are simply

“another way of pleading an action against an entity of which an

officer is an agent.” Monell, 436 U.S. at 690 n.55. See also

Brandon v. Holt, 469 U.S. 464, 471 (1985)(suits against parties

in their official capacities treated as suits against the

municipality). Because I find no municipal liability as to the

HCDOC, I extend that reasoning to the remaining defendants and

conclude that the official capacity claims against them fail.

Conclusion

For the reasons stated above, I find that Picard has alleged

an Eighth Amendment excessive force claim against Richards (Count

II) and First Amendment retaliation claims against Raymond and

Richards (Counts II and III). I recommend dismissal of all

remaining claims. 

Picard’s motion for reconsideration (document no. 15) is

denied as moot as he is no longer incarcerated and has failed to

show cause why his request for preliminary injunctive relief

should be granted. 

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If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the complaint. If the

plaintiff disagrees with the identification of the claims herein,

plaintiff must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

moving to amend the complaint. 

Any further 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 28 U.S.C. §

636(b)(1); Unauthorized Practice of Law Committee 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: October 21, 2005

cc: Warren R. Picard, pro se

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