1Kenney names the following additional defendants, all

employees of the New Hampshire Department of Corrections, to this

action: Robert MacLeod, Medical Director, Dr. Celia Englander,

Chief Medical Officer of the New Hampshire State Prison, and

Denise M. Heath, Deputy Compact Administrator.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Leonard L. Kenney

v. Civil No. 06-cv-001-PB

Stephen Curry, Commissioner,

New Hampshire Department of

Corrections, et al.1

O R D E R

Leonard Kenney has filed a complaint pursuant to 42 U.S.C. §

1983 alleging that his Eighth Amendment right to be protected

from cruel and unusual punishment has been violated by employees

at the New Hampshire Department of Corrections (“NHDOC”) who have

refused to provide him with adequate treatment for his serious

medical needs. Because Kenney is a prisoner filing both pro se

and in forma pauperis, the matter is before me for preliminary

review to determine, among other things, whether or not Kenney

has stated a claim upon which relief may be granted in this

Court. See United States District Court for the District of New

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2

Hampshire Local Rule (“LR”) 4.3(d)(2)(A). For the reasons stated

herein, I direct the complaint to be served on the defendants.

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review. 

Id. In conducting the preliminary review, the Court construes

pro se pleadings liberally. See Ayala Serrano v. Lebron

Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following Estelle v.

Gamble, 429 U.S. 97, 106 (1976) to construe pro se pleadings

liberally in favor of the pro se party). “The policy behind

affording pro se plaintiffs liberal interpretation is that if

they present sufficient facts, the court may intuit the correct

cause of action, even if it was imperfectly pled.” Ahmed v.

Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

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

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

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background

Leonard Kenney is a New Hampshire inmate who was transferred

to the Connecticut Department of Corrections on July 9, 2002

pursuant to the New England Interstate Corrections Compact. See

N.H. Rev. Stat. Ann. (“RSA”) 622-A:2, et seq. Kenney alleges

that since April of 2004, he has been suffering from severe

symptoms related to Hepatitis C, including liver pain, joint

pain, abdominal pain, constant fatigue, and daily sickness. In

June of 2005, Kenney saw an infectious disease specialist in

Connecticut, Dr. J. Gittzus, who conducted blood testing and a

liver biopsy. After this testing, Dr. Gittzus advised Kenney

that he needs to be treated for his Hepatitis C with Interferon

and/or Ribavirin. Kenney alleges that without appropriate

treatment, his Hepatitis C will continue to destroy his liver,

causing him increased suffering and possibly even death. 

Plaintiff alleges that the terms of his interstate transfer allow

New Hampshire officials the final decision-making authority on

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what medical treatment he receives. Specifically, Kenney alleges

that he sent defendant Stephen Curry letters and grievances

explaining his suffering and need for medical treatment on July

12, 2005, August 29, 2005 and November 16, 2005. Kenney sent

defendant Robert MacLeod similar letters and grievances on

October 3, 2005, November 1, 2005 and November 22, 2005. Kenney

also sent letters and grievances to defendant Celia Englander,

who Kenney alleges was ultimately responsible for decisions

regarding his medical treatment. Plaintiff sent defendant Denise

Heath, who is responsible for Interstate Corrections Compact

inmates, letters and grievances on August 31, 2005, October 3,

2005, November 1, 2005 and November 22, 2005. All of plaintiff’s

letters described his serious disease, severe symptoms, and need

for treatment. Despite having received treatment requests

supported by letters from Kenney and recommendations from Dr.

Gittzus, New Hampshire authorities refused to approve the

requests, making it clear that they would not approve treatment

until the disease advances further, destroying more of Kenney’s

liver. 

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Discussion

Kenney’s complaint raises two issues for consideration at

this time. First, this Court must consider whether Kenney has

stated any claim for inadequate medical care upon which relief

may be granted. If he has, this Court must then consider whether

he has sued appropriate individuals in an appropriate forum. I

will address each of these issues in turn.

1. Inadequate Medical Care Claim

To state a cause of action under § 1983 premised on

inadequate medical care, a plaintiff must allege facts that

demonstrate that the defendants acted with deliberate

indifference to his serious medical needs. Estelle, 429 U.S. at

106; Bean v. Cunningham, 650 F. Supp. 709, 713 (D.N.H. 1986),

aff’d, 836 F.2d 1341 (1st Cir. 1987). Deliberate indifference

may be manifested by prison medical personnel in their response

to a 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. As to the second essential element, “[a] medical

need is ‘serious’ if it is one that has been diagnosed by a

physician as mandating treatment, or one that is so obvious that

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even a lay person would easily recognize the necessity for a

doctor’s attention.” Gaudreault v. Municipality of Salem, 923

F.2d 203, 208 (1st Cir. 1990), cert. denied, 500 U.S. 956 (1991). 

Deprivation of medical care constitutes cruel and unusual

punishment under the Eighth Amendment only if the indifference to

an inmate’s medical needs was reckless or wanton in the criminal

law sense, not merely negligent. See Watson v. Caton, 984 F.2d

537, 540 (1st Cir. 1993). In order to allege that the defendants

have failed to provide him with constitutionally adequate medical

care, therefore, Kenney must allege a “deliberate indifference”

to his serious medical needs. 

Here, Kenney has adequately described that he has a very

serious medical condition, Hepatitis C, and that his severe pain

and other symptoms have been identified by an infectious disease

specialist as requiring treatment to combat the furthering of the

destruction of Kenney’s liver. Kenney alleges that despite being

made aware of the precise nature of Kenney’s condition and his

specific treatment needs, the four NHDOC officials responsible

for his care: Curry, MacLeod, Englander, and Heath, have refused

to approve or provide treatment for him. Thus, Kenney has

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alleged that the defendants have acted with deliberate

indifference to his serious medical needs.

2. Choice of Forum

Ordinarily, a prisoner transferred out of state under the

Interstate Corrections Compact should look to the officials and

courts of the receiving state for relief from unconstitutional

conditions of confinement. Rich v. Zitnay, 644 F.2d 41, 42 (1st

Cir. 1981). In this case, however, Kenney has specifically

alleged that the New Hampshire authorities have retained the

right to determine what medical care Kenney can receive. The New

England Interstate Corrections Compact directs that any contract

for the transfer of a prisoner:

shall provide for . . . [p]ayments to be made to 

the receiving state by the sending state for inmate 

maintenance, extraordinary medical and dental 

expenses, and any participation in or receipt by 

inmates of rehabilitative or correctional services, 

facilities, programs or treatment not reasonably 

included as part of normal maintenance.

RSA 622-A:2, Art. III(a)(2). While this Court has not yet been

provided with a copy of the contract governing Kenney’s

interstate transfer, liberally construing the complaint, I can

reasonably infer that the contract provided for preapproval by

New Hampshire authorities of certain extraordinary medical and

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dental expenses and Kenney’s receipt of treatment not provided in

the ordinary course of incarceration. Kenney alleges that the

withholding of that approval by the defendants in this case has

violated his Eighth Amendment right not to be subjected to cruel

and unusual punishment by denying him adequate medical care. 

Accordingly, in this case, Kenney has chosen the appropriate

forum to file this action.

Conclusion

As I find that plaintiff has stated a claim upon which

relief may be granted, I order the complaint (document no. 1) be

served on the defendants. The Clerk’s office is directed to

serve the New Hampshire Office of the Attorney General (AG), as

provided in the Agreement On Acceptance Of Service, copies of

this order and the complaint (document no. 1). See LR

4.3(d)(2)(C). Within thirty days from receipt of these

materials, the AG will submit to the court an Acceptance of

Service notice specifying those defendants who have authorized

the AG’s office to receive service on their behalf. When the

Acceptance of Service is filed, service will be deemed made on

the last day of the thirty-day period. 

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As to those defendants who do not authorize the AG’s office

to receive service on their behalf or whom the AG declines to

represent, the AG shall, within thirty days from receipt of the

aforementioned materials, provide a separate list of the last

known addresses of such defendants. The Clerk’s office is

instructed to complete service on these individuals by sending to

them, by certified mail, return receipt requested, copies of

these same documents. 

The defendants are instructed to answer or otherwise plead

within thirty days of acceptance of service. See Fed. R. Civ. P.

12(a)(1)(A). 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the defendants by delivering or mailing the materials to them or

their attorneys, pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 27, 2006

cc: Leonard L. Kenney, pro se

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