UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Darren Starr

v. Civil No. 05-cv-264-PB

Cpl. Dube, et al.

O R D E R

Before the Court is Darren Starr’s complaint (document no.

1), filed pursuant to 42 U.S.C. § 1983, alleging that various

employees of the New Hampshire Department of Corrections

(“NHDOC”) have violated his First Amendment rights by retaliating

against Starr for the contents of an internal grievance he filed. 

Because Starr is a prisoner filing pro se and in forma pauperis,

the matter is before me for preliminary review to determine

whether or not Starr has stated a claim upon which relief might

be granted. See 28 U.S.C. § 1915A(a); United States District

Court for the District of New Hampshire Local Rule (“LR”)

4.3(d)(2).

Standard of Review

Under this Court’s local rules, when an incarcerated

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

Case 1:05-cv-00264-SM Document 5 Filed 01/17/06 Page 1 of 10
2

magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation determining whether the

complaint or any portion thereof should be dismissed because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state 

a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(2). 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

Case 1:05-cv-00264-SM Document 5 Filed 01/17/06 Page 2 of 10
3

of review and explaining that all “well-pleaded factual

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

Darren Starr has been incarcerated at the New Hampshire

State Prison since the late 1980s. He has been held at the

Northern New Hampshire Correctional Facility (“NCF”) since July

of 2000. 

On July 23, 2003, Starr was asked to sign a canteen slip by

Cpl. Dube, who was on duty at the canteen. Dube, however, did

not allow Starr to see the entirety of the form that he was

signing. Starr complained via internal grievance procedures

about this situation, which occurred more than once during the

summer of 2003. Starr was told that he would not be allowed to

view the form he was signing because canteen was too busy to

afford him that opportunity, but that he could obtain a photocopy

of the form if he requested it and paid for it at least one week

prior to going to the canteen. 

Case 1:05-cv-00264-SM Document 5 Filed 01/17/06 Page 3 of 10
4

In the body of his third internal grievance form regarding

this situation, dated September 15, 2003, Starr stated that “Cpl.

Dube is simply being an unprofessional little man with an

unreasonable control problem.” This grievance form was forwarded

to Lt. John Lovan. Lovan determined that the words “little man”

in the complaint were disrespectful to Cpl. Dube and forwarded a

copy of the grievance form to be investigated for possible

disciplinary infractions. Additionally, Lovan forwarded a copy

of the form to Dube. On September 16, 2003, Dube filed a

disciplinary report against Starr for “insubordination or

disrespect toward a staff member.” Lovan served as the

investigating officer for the infraction and took Starr’s not

guilty plea on September 17, 2003. 

On the following day, September 18, 2003, Dube left his post

at the canteen, which was apparently not as busy as it had been

on July 23, and went to Starr’s cell while Starr was elsewhere in

the facility. Dube asked Starr’s cellmate to identify which

items belonged to Starr. Dube then proceeded to conduct what

Starr describes as a “destructive cell search” of Starr’s

property. Starr alleges that his personal papers and legal

papers and books were dumped haphazardly all over the cell, that

Case 1:05-cv-00264-SM Document 5 Filed 01/17/06 Page 4 of 10
5

his personal belongings were strewn about the cell, that his food

supplies were dumped out and rendered unusable, and that his

hygiene products, such as soap and shampoo were opened and dumped

on his food and his other property. Much of Starr’s property was

damaged and had to be thrown away. The property that was

salvageable was left in great disarray. None of Starr’s

cellmate’s property was searched or disturbed at all.

On September 24, 2003, a disciplinary hearing was held on

the “little man” infraction. The charge was dismissed on

procedural grounds. After the charge was dismissed, Starr filed a

grievance with NCF Warden Cattell alleging that the disciplinary

report and cell search were made in retaliation for Starr’s

filing of a grievance against Dube. Cattell denied the

grievance. Starr then appealed to the NHDOC Commissioner and his

appeal was denied by Attorney John Vinson acting on behalf of the

Commissioner’s office.

 Starr now alleges that his First Amendment right to petition

the government for a redress of grievances was violated when the

state actors, Dube and Lovan, retaliated against Starr for the

content of his grievance. Starr further alleges that Cattell and 

Case 1:05-cv-00264-SM Document 5 Filed 01/17/06 Page 5 of 10
6

Vinson furthered the violation by knowingly allowing the

violation of his First Amendment rights to go unredressed.

Discussion

The First Amendment’s guarantee of a right to petition the

government for a redress of grievances has been characterized as

“among the most precious of the liberties safeguarded by the Bill

of Rights.” United Mine Workers v. Ill. State Bar Ass’n, 389

U.S. 217, 222 (1967). The right of petition, in the prison

context, means that inmates must be “permit[ted] free and

uninhibited access . . . to both administrative and judicial

forums for the purpose of seeking redress of grievances against

state officers.” Sostre v. McGinnis, 442 F.2d 178, 200 (2d Cir.

1971) (en banc), cert. denied, 404 U.S. 1049 (1972). 

“[I]ntentional obstruction of a prisoner’s right to seek redress

of grievances is precisely the sort of oppression that . . .

section 1983 [is] intended to remedy.” Franco v. Kelly, 854 F.2d

584, 589-90 (2d Cir. 1988) (internal quotations omitted). 

A prisoner’s right to petition the government for a redress

of grievances under the First Amendment further precludes prison

officials from retaliating against a prisoner by punishing a

prisoner for actions he takes in the exercise of those rights. 

Case 1:05-cv-00264-SM Document 5 Filed 01/17/06 Page 6 of 10
7

See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). 

Punishing a prisoner for the content of a filed grievance unduly

burdens the prisoner’s ability to file a grievance at all,

because, from the perspective of the prisoner, the chilling

effect on the exercise of his First Amendment rights is the same

as if he were punished for filing a grievance. Id. While prison

officials may make policy that is reasonably related to

legitimate penological interests, even at the expense of certain

constitutional rights, Turner v. Safley, 482 U.S. 78, 89-90

(1987), “actions otherwise supportable lose their legitimacy if

designed to punish or deter an exercise of constitutional

freedoms.” Ferranti v. Moran, 618 F.2d 888, 892 n.4 (1st Cir.

1980); see also Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993)

(prison officials cannot lawfully impose a disciplinary sanction

against a prisoner in retaliation for the prisoner’s exercise of

his constitutional right). 

Starr alleges that the filing of the disciplinary charges,

as well as the destructive cell search conducted one day after

his not guilty plea, amount to improper retaliation for the

content of his grievance and thus constitute an improper

restraint on the exercise of his First Amendment rights. See

Case 1:05-cv-00264-SM Document 5 Filed 01/17/06 Page 7 of 10
8

Ferranti, 618 F.2d at 892 (chronology of events provided support

for inference of retaliation), McDonald v. Hall, 610 F.2d 16, 18

(1st Cir. 1979) (same). The allegations in Starr’s complaint are

sufficient to state a cause of action against Dube and Lorvan in

their individual capacities.

Starr names Cattell and Vinson in this action in their

individual supervisory capacities. “Supervisory liability under

§ 1983 cannot be predicated on a respondeat theory, but only on

the basis of the supervisor’s own acts or omissions.” Matos v.

Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998). A supervisor

must be “either a primary actor involved in, or a prime mover

behind, the underlying violation.” Camilo-Robles v. Zapata, 175

F.3d 41, 43-44 (1999). There must be “an affirmative link,

whether through direct participation or through conduct that

amounts to condonation or tacit authorization.” Id. at 44. Both

Cattell’s and Vinson’s actions can be construed as conduct that

amounts to authorization and condonation of the improper

retaliation alleged. Accordingly, I will allow this action to

proceed against both Cattell and Vinson in their individual

supervisory capacities.

Case 1:05-cv-00264-SM Document 5 Filed 01/17/06 Page 8 of 10
9

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 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. 

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. 

Case 1:05-cv-00264-SM Document 5 Filed 01/17/06 Page 9 of 10
10

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 17, 2006

cc: Darren Starr, pro se

Case 1:05-cv-00264-SM Document 5 Filed 01/17/06 Page 10 of 10