UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Harvey Pratt,

Plaintiff

v. Civil No. 05-cv-367-SM

Opinion No. 2007 DNH 136

N.H. Dep’t of Corrections, et al.,

Defendants

O R D E R

Pro se plaintiff, Harvey Pratt, is a former inmate at the

New Hampshire State prison. He brings this action against the

New Hampshire Department of Corrections (the “DOC”) and more than

30 individuals (most of whom are DOC employees). After reviewing

Pratt’s complaint, the Magistrate Judge concluded that it set

forth six viable federal claims, as well as state law claims for

libel, slander, defamation, and negligence. Those federal claims

are: (1) Fourteenth Amendment due process claims arising from

Pratt’s disciplinary proceedings; (2) First and Fourteenth

Amendment retaliation claims; (3) Fourteenth Amendment due

process claims arising from Pratt’s classification as a “sex

offender;” (4) an Eighth Amendment claim for denial of adequate

medical care; (5) a Fourteenth Amendment right to privacy claim

arising out of the alleged disclosure of Pratt’s confidential
2

medical information; and (6) a supervisory liability claim

against five of the defendants. Report and Recommendation

(document no. 10), 2006 WL 995121 (D.N.H. March 31, 2006) (the

“Report and Recommendation”). 

Subsequently, Pratt filed an amended complaint, but it does

not appear to set forth any additional viable claims. Defendants

have organized their motion for summary judgment in a manner that

is consistent with the Magistrate Judge’s original construction

of plaintiff’s claims, addressing each of the viable federal

causes of action identified in the Report and Recommendation. 

Pratt objects to defendants’ motion, but does not suggest that

his amended complaint advances any new causes of action. 

For the reasons set forth below, defendants’ motion is

granted. 

Standard of Review

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v. Smith, 904

F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate
3

when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Int’l Ass’n of

Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103

F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). 

Nevertheless, if the non-moving party’s “evidence is merely

colorable, or is not significantly probative,” no genuine dispute

as to a material fact has been proved, and “summary judgment may

be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-

50 (1986) (citations omitted). The key, then, to defeating a

properly supported motion for summary judgment is the nonmovant’s ability to support his or her claims concerning disputed

material facts with evidence that conflicts with that proffered

by the moving party. See generally Fed. R. Civ. P. 56(e). It

naturally follows that while a reviewing court must take into

account all properly documented facts, it may ignore bald

assertions, unsupported conclusions, and mere speculation. See,

e.g., Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997). 
4

Background

I. Pratt’s Underlying Criminal Conviction. 

Because Pratt challenges numerous aspects of his underlying

criminal conviction, and because some of his federal claims arise

out of his assertion that prison officials improperly “labeled”

him as a “sexual offender,” it is probably appropriate to briefly

outline the facts and circumstances surrounding his conviction. 

Those facts were disclosed in Pratt’s earlier petition for habeas

corpus relief. The court (DiClerico, J.) there provided the

following summary: 

Pratt met Jamie B[.] through the Internet. Jamie said

that she was sixteen, when she was actually fourteen,

and Pratt was thirty-three. Pratt lived in Quincy,

Massachusetts, and Jamie lived with her father and

step-mother in Londonderry, New Hampshire.

On February 10, 2000, Jamie called Pratt and told him

she wanted to leave home and live with him. Pratt told

her to get as far from home as possible and that he

would pick her up. Jamie hitchhiked from her home to

the Mall of New Hampshire in Manchester. Pratt drove

to Manchester and picked Jamie up at a K-Mart near the Mall.

Pratt drove Jamie to his apartment in Quincy. Jamie

testified that Pratt gave her money, kissed her,

discussed having sex with her, gave her beer and

offered her other alcohol, and told her to tell his

roommate and anyone else at the apartment that she was

eighteen. He also offered Jamie his telephone to call

home, but Jamie did not use it. When Jamie’s father

found she was missing, he contacted police. With

information from Jamie’s step-sister, the police found

Jamie at Pratt’s apartment. Jamie’s father drove to

Quincy to pick her up and provided her computer to the
5

police who sent it to the Federal Bureau of

Investigation for analysis.

Pratt was indicted in September of 2000 on one count of

interference with custody. He was tried and found

guilty on August 14-15, 2001. Pratt appealed on the

ground that the evidence was insufficient to support

his conviction. The New Hampshire Supreme Court

affirmed his conviction without a published decision. 

Pratt then filed pro se motions to amend his sentence,

for a new trial, and to quash the indictment. Counsel

were appointed to represent Pratt on the motions to

amend sentence and for a new trial, and the motion to

amend sentence was granted on appeal. After a hearing,

Pratt was resentenced, but his motions for a new trial

and to quash the indictment were denied. The supreme

court declined Pratt’s appeals.

Pratt v. Warden, Northern N.H. Correctional Facility, 2006 WL

1425963 at *1 (D.N.H. May 23, 2006) (footnote omitted). 

II. Classifying Pratt as a “Sexual Offender.”

When he filed this action, Pratt was serving a sentence of

two to six years in state prison. His original sentence provided

that, as a condition of his eligibility for parole, Pratt was

required to participate in the prison’s sexual offender program. 

It also provided that he must participate in any other programs

prison officials deemed necessary or appropriate (though not

necessarily as a condition of parole eligibility). Upon entering

prison, Pratt was interviewed to determine whether he would

benefit from the sexual offender program. Based upon a review
6

of, among other things, his crime of conviction and the

circumstances surrounding that conviction, prison officials

concluded that he was an appropriate candidate for the program

(despite the fact that he minimized his criminal conduct and was

not amenable to treatment). 

Subsequently, Pratt appealed his sentence and prevailed in

having the court remove the requirement that he participate in

the sexual offender program as a condition of his eligibility for

parole. All other aspects of his sentence, including the

requirement that he participate in programming recommended by the

DOC, remained the same. Although Pratt’s amended sentence did

not specifically require him to participate in the sexual

offender program, DOC staff continued to recommend that he do so. 

Neither the DOC nor prison staff could, however, force Pratt to

participate. 

Pratt alleges that DOC staff “classified” him as a “sexual

offender” which, in turn, caused him to suffer numerous hardships

during his incarceration. Among other things, the DOC’s alleged

classification of him as a sexual offender gives rise to Pratt’s

claims of defamation, libel, and slander. The DOC, on the other

hand, says it does not label or classify inmates as “sexual
7

offenders,” and, during the course of his incarceration, Pratt

was classified as a C-3 or medium custody inmate. Although Pratt

repeatedly requested DOC officials to remove from his file the

recommendation that he participate in the sexual offender

program, officials informed him that they would continue to make

that recommendation until he was re-evaluated by the director of

the sexual offender program. But Pratt repeatedly refused to

submit to such an evaluation. 

In short, Pratt claims that because New Hampshire law does

not require him to register as a convicted sexual offender, see

N.H. Rev. Stat. Ann. (“RSA”) 651-B:1, I and V, prison officials

stigmatized him by recommending that he participate in the

prison’s sexual offender program and, in the process, violated

his Fourteenth Amendment rights. 

III. Disciplinary Charges. 

The various disciplinary incidents giving rise to Pratt’s

claims are described in detail in the Report and Recommendation

and need not be recounted. See id. at 4-17. 
8

IV. Transfer to Berlin. 

In October of 2004, Pratt was transferred from the State

Prison in Concord, New Hampshire, to the state’s Northern

Correctional Facility in Berlin, New Hampshire. Pratt claims he

was transferred in retaliation for having engaged in protected

conduct (that is, either filing grievances within the prison

system or pursuing litigation against various DOC staff). DOC

officials, however, deny that Pratt’s transfer was retaliatory in

nature. Although she does not know exactly why Pratt was

transferred, Kimberly Lacasse, the DOC’s Director of

Classifications, testified that she believes it was because Pratt

was not participating in any prison programming and officials

wanted to free up bed space so other inmates (i.e., those who

wished to participate in such programming) could be moved to

Concord. Lacasse affidavit (document no. 139-3) at para. 12. 

She is, however, confident that Pratt was not moved in

retaliation for his litigation activities and testified that she

did not believe that she was even aware of Pratt’s litigation

activities when the transfer decision was made. Id. 

V. Medical Treatment.

When Pratt was initially held at the Rockingham County Jail

in 2001, he tested positive for tuberculosis. When he was turned
9

over to the custody of the state prison, however, he refused any

additional testing for tuberculosis. Accordingly, the medical

staff ordered a chest x-ray, which was negative. At various

other points in time, Pratt came into contact with the medical

staff, complaining of various respiratory ailments. Those

contacts, as well as the treatment provided and diagnostic

testing ordered, are described in the affidavit of Judy Baker, a

Nurse Practitioner at the Northern Correctional Facility. 

Exhibit K to defendants’ memorandum (document no. 139-13). See

also Report and Recommendation at 36-38. 

Pratt claims the medical treatment he received was so

deficient as to violate the Eighth Amendment’s prohibition

against cruel and unusual punishment. He also claims that Dr.

Eppolito, a physician who provided Pratt with medical care,

violated his privacy rights. Specifically, Pratt says he sent a

request slip to Dr. Eppolito, in a sealed envelope marked

“confidential,” seeking tests for HIV and tuberculosis. He

claims Dr. Eppolito violated his privacy rights when he responded

to that request using the regular prison mail, without using a

sealed envelope. 
10

Discussion

I. Pratt’s Classification.

Much of Pratt’s objection to summary judgment is devoted to

an attack upon his underlying conviction. See Plaintiff’s

objection (document no. 146) at 1-2, 6-11. See also Exhibits 1-

4. Among other things, Pratt claims the statute under which he

was convicted was improperly applied to his case, and asserts

that the evidence introduced at trial was insufficient to sustain

a conviction. Such claims are, however, inappropriate in the

context of a 1983 suit. As Pratt well knows, any challenge to

his underlying state conviction must be raised in the context of

a habeas petition. In fact, Pratt already (unsuccessfully)

pursued both his state and federal habeas remedies. He cannot

attempt to relitigate those claims in the context of this case. 

A. Pratt’s Constitutional Rights were not Violated. 

Pratt’s claim that, despite his success in having his

original sentence modified, prison officials unlawfully continued

to recommend his participation in the sexual offender program

fares no better. In short, Pratt contends that because, upon his

release from prison, New Hampshire law does not require him to

register as a convicted sexual offender, and because his amended

sentence did not require participation in the sexual offender
11

program, prison officials may not even recommend that he

participate in that program. 

Pratt is correct in asserting that his amended sentence

removed the requirement that he successfully complete the sexual

offender program as a prerequisite to parole eligibility. See

Exhibit C to defendants’ memorandum, Amended Sentence (document

no. 139-5) (“The Sentencing Order dated November 21, 2001 is

amended to delete the recommendation to the Department of

Corrections of the Sexual Offender Program [and] the deletion of

the requirement that completion of that program be a condition of

parole.”) Nevertheless, the sentencing court maintained the

requirement that Pratt meaningfully participate in any

programming or training recommended by the DOC. Id. (“The

defendant is to participate meaningfully and complete any

counseling, treatment and educational programs as directed by the

correctional authority or Probation/Parole Officer.”). Given the

circumstances surrounding his conviction and the record before

the court, there is no evidence that prison officials’

recommendation that he participate in the sexual offender program

was irrational or unreasonable in any way. Moreover, even though

staff recommended that Pratt participate in the program, he was
12

not forced to do so, nor was he punished or deprived of any

protected liberty interests for having failed to do so. 

To the extent Pratt claims his due process rights were

violated because his refusal to participate in the sexual

offender program adversely affected his eligibility for parole,

or the prison unit in which he was housed, it is well established

that inmates do not have a protected liberty interest in parole,

classification status, or housing status. See, e.g., Wellington

v. Comm’r of Corrections, No. 96-189-M (D.N.H. Dec. 30, 1996)

(“First, it is clearly established that Wellington has no

constitutionally protected liberty interest in being paroled. 

Under New Hampshire law, parole is a matter of discretion rather

than a matter of right. Neither the New Hampshire parole

statute, N.H. RSA 651-A, nor the regulations promulgated pursuant

to that statute mandate a prisoner’s release upon proof of

certain ascertainable facts.”) (citations and internal

punctuation omitted). See also Report and Recommendation at 26

n.7 (“Under federal and state law, Pratt has no protected liberty

interest in parole, or custodial classification. Nor does he

have a protected liberty interest in rehabilitative, vocational

or educational programs, or prison work assignments, jobs and

wages.”)(citations omitted). 
13

Of course, as the Magistrate Judge recognized in his Report

and Recommendation, some courts have concluded that there are

certain circumstances under which inmates must be afforded due

process protections before a state labels them as “sexual

offenders” and compels them to participate in sexual offender

programs and/or register as sexual offenders. See id. at 29-32

(citing Chambers v. Colorado Dep’t of Corrections, 205 F.3d 1237

(10th Cir. 2000); Kirby v. Siegelman, 195 F.3d 1285 (11th Cir.

1999); Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997)). This is

not such a case. 

First, as Pratt concedes, DOC officials offered to drop the

recommendation that he participate in the sexual offender program

if, upon reevaluation by the program’s director, it was found

that he was unlikely to benefit from the program. Whatever due

process protections the State (through the DOC) owed to Pratt,

presumably the first was to subject him to a psychological

evaluation before determining whether he was an appropriate

candidate for the sexual offender program. The DOC offered to do

just that. Pratt refused. See Report and Recommendation at 32. 

Yet, at the same time, he maintains that his due process rights

were violated. Plainly, Pratt cannot refuse the process afforded
1 The record does not reveal what remedies were available

to Pratt if he had submitted to the re-evaluation and was

dissatisfied with the outcome. Presumably, the prison’s

regulations governing inmate grievances would have allowed him to

challenge such a decision and obtain a hearing on the matter. 

But, neither Pratt nor the defendants discuss that issue. 

14

to him and, simultaneously pursue a claim that he has been denied

due process.1 

In light of his response to the DOC’s proposal to subject

him to a second evaluation, it is difficult to discern the

precise nature of Pratt’s constitutional claim. He seems to

believe that, regardless of any deviant sexual predilections he

may have exhibited, because he was not convicted of a “sexual

offense,” the DOC could not, as a matter of law, recommend that

he participate in the sexual offender program. Accordingly, he

seems to believe that DOC officials were obligated to acquiesce

when he filed various request slips and grievances asking them to

remove that recommendation from his file. He has, however,

failed to point to any authority supportive of such a broad

proposition of law. 

Unlike some of the cases in which courts have recognized

that inmates’ protected liberty interests may be implicated when

they are labeled as “sexual offenders,” Pratt’s refusal to
15

participate in the sexual offender program has not caused him to

lose any accrued good time credits. Nor has it rendered him

“completely ineligible for parole.” See Neal, 131 F.3d at 829

(“[B]ecause the State’s regulations render the inmate completely

ineligible for parole if the treatment program is not

satisfactorily completed, the attachment of the ‘sex offender’

label to the targeted inmate has a practical and inevitable

coercive effect on the inmate’s conduct.”) (emphasis in

original). Consequently, it is difficult to see precisely what

protected liberty interest was adversely affected by the DOC’s

recommendation that he participate in the sexual offender

program. 

B. Qualified Immunity. 

Even if the DOC did violate Pratt’s constitutionally

protected liberty interest(s) by recommending that he participate

in the sexual offender program without first affording him due

process protections, defendants would plainly be entitled to

qualified immunity. 

What makes Pratt’s case somewhat unusual is that New

Hampshire law does not, by virtue of his underlying crime of

conviction, define him as a “sexual offender” or “offender
16

against children.” See RSA 651-B:1, III and V. If he had been

convicted of a crime that state law defines as a sexual offense,

he would, of course, have no due process claim. 

[I]t is clear that [plaintiff] received all of the

process to which he was due. [Plaintiff] was convicted

after formal criminal proceedings of attempted rape,

obviously a sex offense. Further, [plaintiff] had been

previously convicted of rape in 1977 and rape and

attempted sexual assault in 1979. An inmate who has

been convicted of a sex crime in a prior adversarial

setting, whether as the result of a bench trial, jury

trial, or plea agreement, has received the minimum

protections required by due process. Prison officials

need do no more than notify such an inmate that he has

been classified as a sex offender because of his prior

conviction for a sex crime. 

Neal, 131 F.3d at 831. Here, despite the fact that Pratt was not

convicted of a “sex crime,” the DOC has, based upon a review of

the circumstances related to his conviction, as well as an

evaluation of him, recommended that he participate in the sexual

offender program. Assuming, for the moment, that under those

circumstances an inmate is entitled to notice of the decision,

the reasons for that decision, and a hearing at which he might

present evidence to challenge that decision, Pratt’s entitlement

to those procedural protections were not so clearly and

unambiguously established as to preclude defendants from

obtaining qualified immunity. 
17

A government official is entitled to qualified immunity from

personal liability if the challenged “‘conduct [did] not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Aversa v. United States,

99 F.3d 1200, 1214 (1st Cir. 1996) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). The challenged conduct is measured by

a standard of objective reasonableness, that is: “Could an

objectively reasonable official, situated similarly to the

defendant, have believed that his conduct did not violate the

plaintiff[’s] constitutional rights, in light of clearly

established law and the information possessed by the defendant at

the time of the allegedly wrongful conduct?” Wood v. Clemons, 89

F.3d 922, 927 (1st Cir. 1996). And, as the Court of Appeals for

the First Circuit has observed, 

To determine a defendant’s eligibility for qualified

immunity, courts must define the right asserted by the

plaintiff at an appropriate level of generality and ask

whether, so characterized, that right was clearly

established when the harm-inducing conduct allegedly

took place. This does not mean that a right is clearly

established only if there is precedent of considerable

factual similarity. It does mean, however, that the

law must have defined the right in a quite specific

manner, and that the announcement of the rule

establishing the right must have been unambiguous and

widespread, such that the unlawfulness of particular

conduct will be apparent ex ante to reasonable public

officials. After all, qualified immunity for public

officials serves important societal purposes, and it is
18

therefore meant to protect all but the plainly

incompetent or those who knowingly violate the law. 

Brady v. Dill, 187 F.3d 104, 115-16 (1st Cir. 1999) (citations

and internal quotation marks omitted) (emphasis supplied). 

Importantly, as suggested in Dill, a defendant does not lose

the protection of qualified immunity if he acts mistakenly, as

long as his mistake was objectively reasonable, as qualified

immunity is intended to protect “‘all but the plainly incompetent

or those who knowingly violate the law.’” Veilleux v. Perschau,

101 F.3d 1, 3 (1st Cir. 1996) (quoting Malley v. Briggs, 475 U.S.

335, 341 (1986)). Here, even viewing the record in the light

most favorable to Pratt, it is impossible to conclude that, by

evaluating Pratt, reviewing the circumstances surrounding his

conviction, and recommending that he participate in the prison’s

sexual offender program, defendants were plainly incompetent or

knowingly violated his clearly established constitutional rights. 

Stated somewhat differently, in order to prevail, Pratt must

demonstrate that he has a clearly established, constitutionally

protected right to a hearing (complete with the due process

protections identified in Sandin) before prison officials may

make a non-binding recommendation that he participate in the
2 In fact, several courts have considered and rejected

the reasoning embraced by the Kirby court. See, e.g., Grennier

v. Frank, 2005 WL 2076432 (W.D. Wis. Aug. 25, 2005) (“In Neal,

the court acknowledged that a ruling in the inmates’ favor would

19

sexual offender program (i.e., a recommendation that is not

linked to his eligibility for good time credits or the entirely

discretionary awarding of parole). The Ninth Circuit’s opinion

in Neal does not stand for that proposition, since the inmates in

that case were required to complete the sexual offender program

as a “precondition to parole eligibility.” Neal, 131 F.3d at

827. Nor does the Tenth Circuit’s opinion Chambers, since the

inmate was unable to earn some good time credits if he refused to

participate in recommended prison programming. Chambers, 205

F.3d at 1240. 

Of the cases identified in the Report and Recommendation and

presumably (albeit implicitly) relied upon by Pratt, only Kirby

goes so far as to hold that an “inmate who has never been

convicted of a sex crime is entitled to due process before the

state declares him to be a sex offender.” 195 F.3d at 1292. The

Court of Appeals for the First Circuit has yet to reach such a

far-reaching decision, nor has this court’s own research revealed

any other federal circuit courts of appeals that have embraced

the full holding in Kirby.

2 
not ‘guarantee parole or necessarily shorten their sentences by a

single day,’ but concluded nevertheless that the inmates had a

liberty interest in becoming eligible for parole consideration

under the Hawaiian parole scheme at issue. Although the Court of

Appeals for the Ninth Circuit was willing to hold that an inmate

had a liberty interest in discretionary parole, the Court of

Appeals for the Seventh Circuit is not.”); Talouzi v. O'Brien,

2006 WL 625292 at *7 (E.D. Ky. March 10, 2006) (“This Court finds

that there is no due process violation herein because there is no

liberty interest with regard to the sex offender

[classification].”). 

20

Consequently, even assuming Pratt was deprived of a

protected liberty interest when DOC officials recommended that he

participate in the sexual offender program (i.e., to the extent

that recommendation can be said to have “labeled” him a sex

offender), and even assuming he was denied adequate procedural

protections prior to that deprivation, those constitutional

rights were not, at the time, clearly established. Under those

circumstances, defendants would plainly be entitled to qualified

immunity. See, e.g., Williams v. Ballard, 466 F.3d 330, 333 (5th

Cir. 2006) (“Even if we were to consider [Kirby and Chambers],

the district court correctly concluded they do little to render

[plaintiff’s] right clearly established: the prisoner in Chambers

lost accumulated good time credits when he refused to accept a

sex-offender classification while in prison, a liberty interest

different from that here, and in Kirby the court appears to have

found a due process violation on the basis of stigma alone,
21

contrary to our precedent. Consequently, even if consideration

of these cases made the number of cases sufficient, the lack of

consistency among their rules makes ‘the contours of the right’

not ‘sufficiently clear.’”) (citations omitted). 

II. The Disciplinary Charges. 

It is, perhaps, appropriate to note at the outset that Pratt

frequently asserts that he was denied due process in disciplinary

proceedings in which he was exposed to the possible loss of

accrued good time credits. See, e.g., Objection to motion for

summary judgment (document no. 146) at paras. 16 and 17. But,

Pratt does not specifically allege, nor is there any evidence to

suggest, that he was ever actually deprived of any good time

credits. Even if he had been deprived of such credits, Pratt’s

proper remedy would be a petition for habeas corpus relief, not a

§ 1983 action. See generally Paladin v. Rivas, 05-cv-079-SM,

2007 DNH 122 (September 28, 2007). See also Leamer v. Fauver,

288 F.3d 532, 540 (3d Cir. 2002) (“There is only a narrow subset

of actions that arguably might properly be brought as either [a

habeas petition or claim under § 1983], that is, where the

deprivation of rights is such that it necessarily impacts the

fact or length of detention. In a series of decisions, the

Supreme Court has made it clear that for those cases, the
22

narrower remedy, the habeas petition, is the only available

avenue of relief. [Edwards v. Balisok, 520 U.S. 641 (1997)] was

one of these decisions. In it, the Court clarified that a

plaintiff cannot circumvent the overlap between habeas and § 1983

by raising an issue as an attack upon procedure rather than

substance, when resolution of the issue in his favor would

necessarily imply the invalidity of the sentence - the fact or

duration of detention.”)(footnote omitted). 

As to Pratt’s remaining claims about the disciplinary

charges filed against him, there is no evidence in the record to

suggest that he was denied due process (e.g., notice, a hearing,

the opportunity to call witnesses, the opportunity to present

evidence, etc.). Instead, his assault on those proceedings seems

to arise out of his disagreement with their final outcome. That

is, Pratt feels he was wrongfully convicted of those charges

(those to which he did not plead guilty, anyway). See, e.g.,

Plaintiff’s objection to summary judgment (document no. 146) at

para. 16 (explaining how Pratt’s version of the relevant facts

differs from those found to be true at his disciplinary hearing). 

Of course, without more, mere disagreement with the outcome of

prison disciplinary proceedings does not give rise to a
23

constitutional claim. On that basis alone, defendants are

entitled to summary judgment. 

Additionally, however, the penalties imposed upon Pratt were

not sufficiently severe to implicate any constitutionally

protected liberty interests. In his Report and Recommendation,

the Magistrate Judge concluded that Pratt set forth a viable

Fourteenth Amendment procedural due process claim “to the extent

he claims defendants’ actions resulted in the loss of accrued

good time credit.” Id. at 25-26. As noted above, however, such

a claim (to the extent Pratt even advances one) must be brought

in the context of a petition for habeas corpus relief; section

1983 is not the proper vehicle for advancing such claims. 

The punishments that were actually imposed on Pratt for his

improper conduct involved the imposition of additional hours of

work duty and the loss of canteen and recreation privileges for a

few days. See Exhibits H (document no. 139-10) and J (document

no. 139-12) to defendants’ memorandum. Punishments of that sort

are not “atypical and significant hardship[s] on the inmate in

relation to the ordinary incidents of prison life.” Sandin v.

Conner, 515 U.S. 472, 484 (1995). Consequently, as a matter of

law, Pratt has no § 1983 claim that defendants violated his
24

constitutionally protected due process rights during the course

of the disciplinary proceedings. See, e.g., Garland v. Horton,

129 Fed. Appx. 733, 734-735 (3d Cir. 2005) (“The Supreme Court

has recognized an inmate’s qualified right to call witnesses in a

disciplinary hearing, and has also stated that the

decisionmaker’s conclusion must be supported by at least ‘some

evidence.’ In a case such as this one, these due process

protections are not required unless the discipline at issue

imposes an ‘atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.’ Here,

[plaintiff’s] thirty-day placement in the RHU was not the sort of

hardship required to confer a cognizable liberty interest.”).

(citations and internal punctuation omitted); Harris v. Chabries,

114 Fed. Appx. 363, 365 (10th Cir. 2004) (“[A]s to his challenge

to the defendants’ inmate classification system, housing

assignments, and program assignments, [plaintiff] has failed to

allege ‘an atypical and significant hardship ... in relation to

the ordinary incidents of prison life’ that would trigger the

protections of the Due Process Clause.”) (citations omitted);

Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003)

(“Typically, administrative segregation in and of itself does not

implicate a protected liberty interest.”); Smith v. Roper, 12

Fed. Appx. 393, 396 (7th Cir. 2001) (“In light of Sandin, the
25

deprivations that [plaintiff] suffered as a result of the

disciplinary proceedings - namely, 22 days in segregation, a sixmonth loss of privileges associated with his demotion to “C”

class, and six days without phone privileges - do not implicate a

liberty interest.”). 

III. Retaliation Claims. 

Defendants assert that there is no genuine dispute that all

disciplinary charges lodged against Pratt were based solely on

his improper behavior while in prison and were not motivated by

any desire to retaliate against him. The same is true, say

defendants, with respect to his transfer from Concord to Berlin. 

Pratt’s objection is silent on the issue. He has not, for

example, attempted to point to evidence suggesting that

defendants were motivated by a retaliatory animus. 

Because Pratt has not filed any affidavits, deposition

testimony, or other evidence that undermines defendants’

recitation of the relevant facts relating to his retaliation

claims, the court will take defendants’ statement of facts as

uncontested. See Local Rule 7.2(b)(2) (“All properly supported

material facts set forth in the moving party’s factual statement

shall be deemed admitted unless properly opposed by the adverse
3 Parenthetically, the court notes that, in his

objection, Pratt says, “Plaintiff did not plead a claim for

retaliation for the disciplinary charges stated in defendants’

Motion for Summary Judgment.” Plaintiff’s objection (document

no. 146) at 13. Accordingly, although it is not entirely clear,

it appears either that Pratt never intended to bring claims

alleging unlawful retaliation relating to the disciplinary

charges or that he has waived them. 

26

party.”). Based upon those undisputed facts, defendants are

entitled to judgment as a matter of law as to the retaliation

claims identified by the Magistrate Judge in his Report and

Recommendation.3 

IV. Denial of Adequate Medical Care. 

In order to prove a section 1983 claim for medical

mistreatment, an inmate must show that prison officials

demonstrated “deliberate indifference to [his] serious medical

needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). This test

has both subjective (state-of-mind) and objective components. 

See DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991). In

Farmer v. Brennan, 511 U.S. 825 (1994), Justice Souter explained

the state-of-mind element of deliberate indifference in the

context of an Eighth Amendment claim. Id. at 834-847. A prison

official is liable “only if he knows that inmates face a

substantial risk of serious harm and disregards that risk by

failing to take reasonable measures to abate it.” Id. at 847. 
27

Accordingly, an Eighth Amendment medical mistreatment claim

cannot be premised on a theory of simple negligence or medical

malpractice; a medical care provider’s conduct must go beyond

negligence in diagnosing or treating a prisoner’s medical

condition. Similarly, a constitutional violation does not occur

merely because a prisoner happens to disagree with a nurse’s or

physician’s decision regarding the proper course of medical

treatment. See Watson v. Caton, 984 F.2d 537, 540 (1st Cir.

1993) (“The courts 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.”).

With regard to the objective component of the deliberate

indifference test, the inmate must show that he or she has

suffered a serious deprivation of a fundamental right or basic

human need. See DesRosiers, 949 F.2d at 18. As the Supreme

Court has observed, the Constitution “does not mandate

comfortable prisons, and only those deprivations denying the

minimal civilized measure of life’s necessities are sufficiently

grave to form the basis of an Eighth Amendment violation.” 

Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citation and internal
28

quotation marks omitted). See also Rhodes v. Chapman, 452 U.S.

337, 347 (1981) (“Conditions must not involve the wanton and

unnecessary infliction of pain, nor may they be grossly

disproportionate to the severity of the crime warranting

imprisonment. . . . But conditions that cannot be said to be

cruel and unusual under contemporary standards are not

unconstitutional. To the extent that such conditions are

restrictive and even harsh, they are part of the penalty that

criminal offenders pay for their offenses against society.”). 

Here, the undisputed facts of record fail to support even

the claim that Pratt received negligent medical care. The record

certainly does not support Pratt’s assertion that defendants were

deliberately indifferent to his serious medical needs and, in so

doing, provided him with care that was so far below acceptable

norms as to be violative of the Eighth Amendment. See, e.g.,

Exhibit K to defendants’ memorandum, Affidavit of Nurse

Practitioner Judy Baker (document no. 139-13) (detailing Pratt’s

medical care). In fact, Pratt himself concedes that, without a

medical expert (which he has not disclosed), “plaintiff cannot

meet his burden of proof.” Plaintiff’s objection (document no.

146) at 6. Consequently, as to Pratt’s medical claims,

defendants are entitled to judgment as a matter of law. 
29

V. Right to Privacy. 

Finally, Pratt claims that Nurse Baker and Dr. Eppolito

violated his constitutionally protected right to privacy. 

Specifically, Pratt alleges that he filed a request for

tuberculosis and HIV tests, which he delivered in a sealed

envelope. According to Pratt, Dr. Eppolito and/or Nurse Baker

responded to that request by using the normal prison mail system

- that is, they did not use a sealed envelope. That, says Pratt,

means other inmates and/or corrections officers could have had

access to his personal and confidential medical information. 

In allowing Pratt’s privacy claim to proceed, the Magistrate

Judge noted that, although Pratt had alleged the minimal facts

necessary to describe a viable claim, he failed to “even allege[]

that the correctional staff who received his medical information

actually read his files or did anything improper with the

contents.” Report and Recommendation at 40-41. Plainly, to

survive defendants’ motion for summary judgment, Pratt would need

to do more. But, Pratt’s objection does not address his right to

privacy claim nor does it respond to defendants’ assertion that

they are entitled to judgment as a matter of law. As a result,

Pratt has failed to point to any evidence suggesting that any

unauthorized third parties, whether DOC staff or other inmates,
30

actually saw his allegedly confidential submission to medical

staff. Absent such evidence, he cannot prevail on a claim that

defendants violated his constitutionally protected right to

privacy. 

VI. State Common Law Claims. 

Having resolved all of Pratt’s federal claims in favor of

defendants, the court declines to exercise supplemental

jurisdiction over his state law claims. See generally 28 U.S.C.

§ 1367(3). See also United Mine Workers v. Gibbs, 383 U.S. 715,

726 (1966); Camelio v. American Fed’n, 137 F.3d 666, 672 (1st

Cir. 1998); DePoutot v. Raffaelly, 2005 DNH 39, 2005 WL 515853 at

*9-10 (D.N.H. March 3, 2005). 

Conclusion

For the foregoing reasons, as well as those set forth in

defendants’ memorandum and the accompanying exhibits, defendants’

motion for summary judgment (document no. 139) is granted. The

Clerk of Court shall enter judgment in accordance with this order

and close the case. 
31

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

November 7, 2007

cc: Harvey Pratt, pro se

Andrew B. Livernois, Esq.

Nancy Smith, Esq.

John Vinson, N.H. DOC