UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dwayne A. Reddick

v. 05-cv-132-PB

Superintendent, Hillsborough County

Department of Corrections, et al.

REPORT AND RECOMMENDATION

Proceeding pro se and in forma pauperis, plaintiff Dwayne A.

Reddick brings this 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. 2). Named as defendants are James O’Mara,

Superintendent of the Hillsborough County Department of

Corrections (“HCDOC”), and HCDOC Correctional Officers Dionne,

Braffitt, Martin and Bourgeois. 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. District Court for the District of New Hampshire

Local Rule (“LR”) 4.3(d)(2).

For the reasons stated below, I recommend that the complaint

be dismissed.

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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

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

Reddick is currently a pretrial detainee at the HCDOC. 

During the course of his incarceration, he claims, prison

officials have subjected him to numerous constitutional

deprivations in violation of his rights under the First, Eighth

and Fourteenth Amendments to the United States Constitution. The

deprivations allegedly arise from two incidents where he

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attempted to invoke his First Amendment right to free speech. 

The first incident occurred on September 28, 2004 while

Reddick was talking to an inmate in an adjacent cell and was

ordered by Martin to stop talking. When Reddick replied that his

rights were being violated he was ordered to lock-down. Although

he complied with the order, within twenty minutes he was escorted

in restraints to Unit 1A to await a disciplinary hearing and was

issued a disciplinary report (04-3361). On October 1, 2004,

Bourgeois allegedly found him guilty of “talking.”

The second incident occurred on December 22, 2004 when

Reddick was out of his cell and attending “med pass.” At that

time, he was whispering to another inmate and Braffitt ordered

him to “lock-in” for talking during “med pass.” Although Reddick

complied with the order, he was subjected to a twenty-three hour

lock-down for six days and was issued a second disciplinary

report (04-4270). On December 28, 2004, Bourgeois conducted a

hearing, found Reddick guilty of the above infraction and

classified him to 2B, a maximum security housing unit. Reddick’s

appeal was denied by Dionne on December 29, 2004, and his

subsequent appeals of disciplinary reports 04-3361 and 04-4270

filed on March 21, 2005 were denied by Dionne and O’Mara.

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Reddick now 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

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 Reddick’s Section 1983 action is that prison

officials abridged his First Amendment right to freedom of speech

by ordering him to refrain from speaking with an inmate in an

adjacent cell (Count I) and to refrain from speaking to another

inmate during “med pass” (Count III). He further alleges that

defendants conspired to violate his First, Eighth and Fourteenth

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Amendment rights by disciplining him for talking, subjecting him

to lock-downs and denying his appeals of the disciplinary reports

issued against him (Counts II, IV and V). 

A. First Amendment Claims

While a prisoner does not completely sacrifice his right to

free speech, this right is necessarily diminished by his

incarceration. Jones v. N. C. Prisoners’ Labor Union, Inc., 433

U.S. 119, 125 (1977). Prison inmates retain First Amendment

rights not inconsistent with their status as prisoners or the

legitimate penological objectives of the corrections system. 

Pell v. Procunier, 417 U.S. 817, 822 (1974). “This is because

certain privileges and rights must necessarily be limited in the

prison context.” Johnson v. California, 125 S. Ct. 1141, 1149

(2005) (“‘[L]awful incarceration brings about the necessary

withdrawal or limitation of many privileges and rights, a

retraction justified by the considerations underlying our penal

system’” (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). 

In prison, restrictions may be no more intrusive than reasonably

necessary in order to effectuate legitimate policies and

objectives. Procunier v. Martinez, 416 U.S. 396, 412 (1974). 

However, a plaintiff “must make specific allegations that

indicate a deprivation of constitutional rights; general,

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indirect and conclusory allegations are not sufficient.” Hankard

v. Town of Avon, 126 F.3d 418, 423 (2d Cir. 1997).

In Counts I and III of the complaint, Reddick alleges that

prison officials abridged his First Amendment right to freedom of

speech by ordering him to refrain from speaking with an inmate in

an adjacent cell and to further refrain from speaking to another

inmate during “med pass.” “Casual conversation confined to a

small social group that is not public speech intended to inform,

edify, or entertain the listeners is not protected by the free

speech clause.” Reyes v. McEachern, No. 04-10969, 2005 WL 361817

at *1 (5th Cir. 2005) (citing Jackson v. Cain, 864 F.2d 1235,

1248 (5 Cir. 1989) and Swank v. Smart, 898 F.2d 1247, 1250 (7th th

Cir. 1990)). Furthermore, “a prison inmate does not have an

unlimited right to speak when and where he might so desire or to

speak about any topic.” Alexander v. Cook, 02-cv-072, 2002 WL

32191035 at *2 (N.D. Tex. Oct. 29, 2002). Here, Reddick’s

conversations with the other inmates appear to be casual and

private and not a matter of public concern. Accordingly, I

conclude that the facts alleged in Counts I and II do not rise to

the level of protected speech under the free speech clause and

therefore fail to state cognizable First Amendment claims.

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B. Eighth Amendment Claims

Construed liberally, Count III of the complaint further

alleges that defendants abridged Reddick’s Eighth Amendment right

to be free from cruel and unusual punishment when they placed him

in a twenty-three hour lock-down for six days. 

Courts have recognized that extended periods of lock-down

can violate the Eighth Amendment. See Delaney v. DeTella, 256

F.3d 679, 686 (7th Cir. 2001) (six-month lock-down violative of

Eighth Amendment). Lock-down periods of less than thirty days,

however, generally do not violate the Eighth Amendment. See

Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988)(twentyeight days in segregation not violative of Eighth Amendment) and

Caldwell v. Miller, 790 F.2d 589, 601 (7th Cir. 1986)(thirty days

of twenty-four hour lock-down not violative of Eighth Amendment).

Reddick has not alleged that the lock-down has caused him more

than inconvenience or discomfort, neither of which amount to a

“‘wanton and unnecessary infliction of pain’” violative of the

Eighth Amendment. See Liles v. Camden County Dep’t of Corr., 225

F. Supp. 2d 450, 461 (D.N.J. 2002)(quoting Rhodes v. Chapman, 452

U.S. 337, 347 (1981)). Accordingly, I conclude that he has

failed to state a cognizable Eighth Amendment claim.

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C. Fourteenth Amendment Claims

1. Administrative Segregation

Construed liberally, Count IV of the complaint alleges that

defendants abridged Reddick’s Fourteenth Amendment right to due

process by classifying him to the maximum security unit for an

extended period of time.

“[T]o present a due process claim, a plaintiff must

establish (1) that he possessed a liberty interest and (2) that

the defendant(s) deprived him of that interest as a result of

insufficient process.” Ortiz v. McBride, No. 02-0088, 2004 WL

1842644 at *5 (2d Cir. Aug. 18, 2004) (citing Giano v. Selsky,

238 F.3d 223, 225 (2d Cir. 2001)). “Prison discipline implicates

a liberty interest when it ‘imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life.’” Id. (citing Sandin v. Conner, 515 U.S. 472, 484

(1995)). 

A prisoner does not normally have a liberty interest in

remaining free of disciplinary or administrative segregation, see

Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6 Cir. 1995), th

therefore, Reddick has not established that he has a liberty

interest in being free from being placed in the maximum security

unit. Nor has he demonstrated that his restricted confinement

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imposed atypical and significant hardship in relation to the

ordinary incidents of prison life at the HCDOC, see Trice v.

Clark, 1996 WL 257578 at *3 (S.D.N.Y. May 16, 1996) (longer

confinements in secured housing unit (150 days), combined with a

greater loss of privileges, did not implicate atypical and

significant hardship). Because Reddick’s confinement in the

maximum security unit cannot be considered an “atypical and

significant hardship,” no liberty interest is implicated and his

due process rights, therefore, are not violated. Accordingly, I

conclude that he has failed to state a Fourteenth Amendment due

process claim premised upon his confinement in the maximum

security unit.

2. Administrative Appeals

Counts II, IV and V of the complaint allege that defendants

violated Reddick’s Fourteenth Amendment rights by finding him

guilty of talking to other inmates and denying his administrative

appeals of the disciplinary reports issued against him. 

Defendants’ alleged failure to grant Reddick’s

administrative appeals of his grievances does not rise to the

level of a Fourteenth Amendment due process violation. See Odom

v. Poirier, 99-Civ.-4933 (GBD), 2004 WL 2884409 at *10 (S.D.N.Y.

Dec. 10, 2004) (holding that corrections officers’ alleged

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failure to properly address plaintiff’s grievances did not create

a cause of action for denial of due process because plaintiff

failed to identify a liberty interest protected by the Due

Process Clause). “While the filing of grievances is

constitutionally protected, the manner in which grievance

investigations are conducted do not create a protected liberty

interest.” Id. (citing Torres v. Mazzuca, 246 F. Supp. 2d 334,

342 (S.D.N.Y. 2003) (“[p]rison grievance procedures do not confer

any substantive right upon an inmate requiring the procedural

protections envisioned by the Fourteenth Amendment.”). Nor does

an inmate have a federally protected right to have his grievances

resolved to his satisfaction. Geiger v. Jones, 404 F.3d 371, 374

(5th Cir. 2005)(prisoner had no federally protected interest in

having grievances resolved to his satisfaction); accord Wilson v.

Johnson, No. 04-20495, 2005 WL 977830 at *1 (5th Cir. 2005). 

Here, Reddick does not allege that defendants denied him the

opportunity to file an appeal or proceed through the prison’s

internal grievance system. Instead, he merely alleges that

defendants rendered an adverse decision after conducting

disciplinary hearings and reviewing his appeals. Reddick’s

dissatisfaction with defendants’ decision to deny his

administrative appeals does not constitute a liberty interest

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protected by the Fourteenth Amendment. Accordingly, I conclude

that he has failed to state a cognizable due process claim under

the Fourteenth Amendment.

Conclusion

For the reasons stated above, I find that Reddick has failed

to state a claim upon which relief may be granted and recommend

dismissal of the complaint in its entirety.

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,

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792 F.2d 4, 6 (1st Cir. 1986).

________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 25, 2005

cc: Dwayne A. Reddick, pro se

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