1Construed liberally, the complaint names O’Mara as a

defendant in his representative capacity.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William J. Carey

v. Civil No. 05-cv-274-PB

Hillsborough County

Department of Corrections

REPORT AND RECOMMENDATION

Pro se plaintiff William J. Carey has filed a complaint,

pursuant to 42 U.S.C. § 1983, alleging various violations under

the First, Eighth and Fourteenth Amendments to the United States

Constitution and New Hampshire state law (document nos. 1, 6, 8

and 10). Named as defendants are the Hillsborough County

Department of Corrections (“HCDOC”) and three of its officers and

employees: Superintendent James O’Mara1, Dr. Ward and

Corrections Officer Kenyan. 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).

Case 1:05-cv-00274-PB Document 11 Filed 11/22/05 Page 1 of 20
2

Also filed is a motion for transfer from the HCDOC to the

Cheshire County Department of Corrections (“CCDOC”) (document no.

3). For the reasons stated below, I find that Carey has stated

an Eighth Amendment denial of adequate dental care claim, and a

related state law negligence claim, against the unnamed HCDOC

dentist. He has also stated Eighth Amendment failure to protect

claims against the HCDOC and O‘Mara. I recommend dismissal of

all remaining claims. I further recommend that the motion for

transfer be denied.

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

Case 1:05-cv-00274-PB Document 11 Filed 11/22/05 Page 2 of 20
3

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

(1st Cir. 1988). I apply this standard in reviewing Carey’s

complaint.

Background

Crediting the factual allegations in the complaint in the

light most favorable to Carey, the material facts are as follows. 

Carey, a pretrial detainee at the HCDOC, alleges that during the

course of his incarceration prison officials subjected him to

various constitutional deprivations in violation of his rights

under the First, Eighth and Fourteenth Amendments to the United

States Constitution. Acting in their capacity as state

employees, defendants allegedly failed to protect him from attack

by his cell-mate, denied him adequate medical and dental care and

subjected him to inhumane conditions of confinement and

disciplinary retaliation. In addition, defendants allegedly

denied Carey meaningful access to the courts and interfered with

his legal mail. He now brings this action pursuant to Section

1983, alleging that defendants’ acts and omissions rise to the

level of constitutional deprivations.

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

Case 1:05-cv-00274-PB Document 11 Filed 11/22/05 Page 3 of 20
2While the provisions of the Eighth Amendment do not extend

to pretrial detainees, the Due Process Clause of the Fourteenth

Amendment provides them with rights which are at least as great

as the Eighth Amendment protections available to a convicted

prisoner. See Burrell v. Hampshire County, 307 F.3d 1, 7 (1st

Cir. 2002).

4

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 Carey’s Section 1983 action is

that prison officials subjected him to the following

constitutional deprivations in violation of his rights under the

First, Eighth2 and Fourteenth Amendments to the United States

Constitution. 

A. Eighth Amendment Claims

1. Failure to Protect

Carey alleges that defendants abridged his Eighth Amendment

rights by placing him in danger and failing to protect him from

an attack by his cell-mate. 

Prison officials have an obligation to protect prisoners

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5

from violence at the hands of other prisoners. See Farmer v.

Brennan, 511 U.S. 825, 833 (1994) (citation omitted). “It is

not, however, every injury suffered by one prisoner at the hands

of another that translates into constitutional liability for

prison officials responsible for the victim’s safety.” Id.

“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, 307 F.3d at 7-8 (citation omitted). 

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).

Case 1:05-cv-00274-PB Document 11 Filed 11/22/05 Page 5 of 20
6

Carey alleges that while he was incarcerated at the HCDOC

and awaiting trial on nonviolent misdemeanor charges, defendants

subjected him to a serious or unreasonable risk of harm by

placing him in a cell with a violent inmate. Because of an

alleged HCDOC policy that permits cell changes only for medical

reasons, Carey was unable to obtain a cell transfer even though

his cell-mate, Joshua “Robbie” Converse, posed a risk of danger. 

While confined in his cell on June 11, 2003, Carey was assaulted

by Converse and sustained several broken teeth and injury to his

jaw. According to Carey, “Converse had a long history of

violence, felonies and state [penitentiary] time,” and prison

officials had knowledge of his propensity for violence. If true,

these allegations may well give rise to a cognizable Eighth

Amendment claim premised on the failure to protect against the

HCDOC and O’Mara.

2. Denial of Adequate Dental Care and

Medical Care

Construed liberally, the complaint alleges that an unnamed

prison dentist denied Carey adequate dental care for his broken

teeth and injured jaw. The complaint further alleges that Dr.

Ward denied him adequate medical care for a lump of the right

side of his neck and for the pain in his right knee and ankle.

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7

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. 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. 

“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). The denial of

dental care may give rise to a constitutional violation when the

denial results in a substantial risk of serious harm to a

prisoner. See Farrow v. West, 320 F.3d 1235, 1243-44 (11th Cir.

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8

2003)(need for dental care combined with the effects of not

receiving it may give rise to an Eighth Amendment claim); Chance

v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)(finding serious

dental need where plaintiff alleged extreme pain, deterioration

of his teeth and an inability to eat properly); Boyd v. Knox, 47

F.3d 966, 969 (8th Cir. 1995)(delay in dental care coupled with

knowledge of patient’s pain can support Eighth Amendment claim).

With regard to Carey’s inadequate dental care claim, he has

described a serious dental need. On June 11, 2003 he sustained

several broken teeth and injury to his jaw, including problems

with the alignment and movement of his jaw, all of which cause

him pain. Construed liberally, the complaint demonstrates

deliberate indifference with respect to the unnamed prison

dentist by alleging that once he had knowledge of Carey’s serious

dental needs, he nevertheless denied him adequate care or failed

to ensure that he received proper care. If true, the allegations

may demonstrate that the unnamed prison dentist prevented Carey

from receiving prompt and essential dental treatment for a

serious condition. Accordingly, I conclude that Carey has stated

sufficient facts for an Eighth Amendment claim premised upon the

denial of adequate dental care against the unnamed prison

Case 1:05-cv-00274-PB Document 11 Filed 11/22/05 Page 8 of 20
3If Carey wishes to pursue his claims against the unnamed

HCDOC dentist, he will have to obtain the defendant’s full name

in discovery and appropriately move to amend the complaint. To

this end, upon service of this action on the named defendants,

Carey can serve the named defendants with interrogatories to

obtain the full names of the presently unnamed defendant pursuant

to Fed. R. Civ. P. 33(a) which states in pertinent part:

Without leave of court or written stipulation, 

any party may serve upon any other party 

written interrogatories, not exceeding 25 in 

number including all discrete subparts, to be 

answered by the party served or, if the party 

served is a public or private corporation or a 

partnership or association or governmental 

agency, by an officer or agent, who shall 

furnish such information as is available to 

the party.

Carey is further instructed to forward a summons to this Court

with the defendant’s proper name.

9

dentist3.

As for Carey’s allegations of denial of adequate medical

care, I conclude that the complaint fails to allege sufficient

predicate facts to support an Eighth Amendment claim. Carey has

not identified any serious medical need or condition. While he

claims to suffer from a lump in his right neck and pain and

crunching in his right knee and ankle, he has not identified the

severity or frequency of his symptoms or any serious medical

condition. Nor has he demonstrated deliberate indifference by

any defendant with regard to a delay or denial of medical care. 

Case 1:05-cv-00274-PB Document 11 Filed 11/22/05 Page 9 of 20
10

He broadly alleges that Dr. Ward denied him “treatment for

injuries/medical conditions” but fails to provide any relevant

dates or sufficient predicate facts. In light of his unsupported

claims, I conclude that he has failed to allege a cognizable

Eighth Amendment claim premised upon the denial of adequate

medical care and, therefore, recommend dismissal of this claim.

3. Inhumane Conditions of Confinement

Construed liberally, the complaint alleges that defendants

violated Carey’s Eighth Amendment rights by subjecting him to

inhumane conditions of confinement. Carey allegedly was denied 

edible apples and carrots, provided “saccahrine-filled” lemon

drink and toothpaste and denied use of bathroom facilities during

his two-hour session in the HCDOC law library.

Under the Eighth Amendment, prisoners are entitled to

adequate shelter, including the “minimal civilized measure of

life’s necessities.” Farmer, 511 U.S. at 832-34; Rhodes v.

Chapman, 452 U.S. 337, 347-49 (1981). As stated previously, to

successfully allege an Eighth Amendment violation, a plaintiff

must first plead facts which, if true, establish that a

“sufficiently serious” deprivation occurred. Wilson v. Seiter,

501 U.S. 294, 298-99 (1991). A plaintiff must show that the

conditions he was forced to endure were beyond the bounds of

Case 1:05-cv-00274-PB Document 11 Filed 11/22/05 Page 10 of 20
11

human decency, and that the prison officers intentionally or

recklessly subjected him to those conditions. See Hudson v.

McMillian, 503 U.S. 1, 9 (1992) (“extreme deprivations are

required to make out a conditions-of-confinement claim”); Wilson,

501 U.S. at 298-301.

Here, Carey’s conclusory complaints of being denied edible

apples and carrots and provided “saccahrine-filled” lemon drink

and toothpaste do not allege deprivations sufficiently extreme to

establish a cognizable Eighth Amendment claim. Nor does the fact

that he was denied the use of the law library bathroom during a

two-hour period rise to the level of an Eight Amendment

violation. As to each claim, he alleges no facts as to the

frequency, duration and magnitude of the problems or any ensuing

constitutional harm. See Street v. Fair, 918 F.2d 269, 272 (1st

Cir. 1990)(inmate must present sufficient facts to confirm

seriousness of harm). Furthermore, he has not alleged any facts

showing that he reported the problems to the defendants or that

any officer acted recklessly, or even intentionally, in

subjecting him to such conditions. Accordingly, I conclude that

he has failed to state an Eighth Amendment claim premised upon

inhumane conditions of confinement and recommend that this claim

be dismissed.

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12

B. First and Fourteenth Amendment Claims

1. Denial of Meaningful Access to the Courts

a) Library Access

Carey alleges that defendants have denied him meaningful

access to the courts in violation of his federally protected

rights by restricting his access to the prison law library.

It is undisputed that inmates have a constitutionally

protected right of meaningful access to the courts. See Bounds

v. Smith, 430 U.S. 817, 828 (1977); Wolff v. McDonnell, 418 U.S.

539, 556 (1974); Boivin v. Black, 225 F.3d 36, 42 (1st Cir.

2000). This right, however, only “‘requires prison authorities

to assist inmates in the preparation and filing of meaningful

legal papers by providing prisoners with adequate law libraries

or adequate assistance from persons trained in the law.’” Carter

v. Fair, 786 F.2d 433, 435 (1st Cir. 1986)(quoting Bounds, 430

U.S. at 828)). 

While a prison inmate retains a right of access to the

courts, to establish a claim he must allege that he suffered

actual injury as a result of defendants’ actions. See Lewis v.

Casey, 518 U.S. 343, 351-52 (1996). An inmate cannot establish

relevant actual injury simply by alleging that “his prison’s law

library or legal assistance program is subpar in some theoretical

Case 1:05-cv-00274-PB Document 11 Filed 11/22/05 Page 12 of 20
13

sense.” Id. at 351. He must demonstrate that the alleged

shortcomings in the law library or legal assistance program

“hindered his efforts to pursue a legal claim.” Id. (“He might

show, for example, that a complaint he prepared was dismissed for

failure to satisfy some technical requirement which, because of

deficiencies in the prison’s legal assistance facilities, he

could not have known. Or that he had suffered arguably

actionable harm that he wished to bring before the courts, but

was so stymied by inadequacies of the law library that he was

unable even to file a complaint.”). 

Here, Carey claims that his right of access to the courts

was impermissibly infringed by his restricted use of the HCDOC

law library. For a period of three weeks he was afforded only

one and one half hours of library access. Absent actual injury,

there is no indication that his restricted access to the library

violates his right to access the courts. See Sherman v. Peters, 

No. 92-C-2192, 1996 WL 521404, at *1, 3-4 (N.D. Ill. Sept. 11,

1996) (absent injury, two hours per week of library time not a

violation of right to access courts); Hains v. Washington, NO.

96-C-2657, 1996 WL 685453, at * 3 (N.D. Ill. Nov. 25, 1996)(two

hours per week of regular library time not a violation of right

to access courts, even where library is continually closed under

Case 1:05-cv-00274-PB Document 11 Filed 11/22/05 Page 13 of 20
14

the pretext of institutional security reasons); Hoover v. Watson,

886 F. Supp. 410, 420 (D. Del. 1995) (two to three hours per week

of library time not a violation of right to access courts). 

Carey has not identified any actual injury resulting from his

restricted access to the library. He claims to have four actions

pending in four separate courts. In the instant case, and in his

three other cases pending in this Court, he has been able to file

numerous pleadings. Because he has not alleged any actual

injury, I conclude that he has failed to allege a cognizable

First Amendment violation and therefore recommend dismissal of

this claim.

b) Interference with Mail

Carey broadly alleges that prison officials opened and

mishandled his legal mail. He claims that on July 29, 2005,

Corrections Officer Kenyan opened his legal mail in his presence,

read the contents and placed the contents back inside the

envelope. To the extent Carey alleges that he has been denied 

meaningful access to the courts, he has provided little, if any,

support for his conclusory assertion that Kenyan unlawfully

opened, read, misdirected or tampered with his legal mail. It is

well-settled that prison officials may only open an inmate's

legal mail in his or her presence. See Wolff v. McDonnell, 418

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15

U.S. 539, 576-77, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Lepine v.

Brodeur, 1999 WL 814277, *3 (D.N.H. 1999). With regard to an

inmate’s privileged mail, an isolated incident involving the

inadvertent opening of mail, without any evidence of improper

motive or resulting interference with the right to counsel or to

access to the courts, does not give rise to a constitutional

violation. See Lepine v. Brodeur, No. 97-072, 1999 WL 814277,

at *15 (D.N.H. Sept. 30, 1999)(quoting Smith v. Maschner, 899

F.2d 940, 944 (10th Cir. 1990). 

Here, Carey has not demonstrated more than an isolated

occurrence of inadvertent opening and reading of his legal mail. 

See e.g. Johnson v. Morton, No, 95-949, 1996 WL 518078, at *2

(E.D.N.Y. Aug. 26, 1996)(single incident of interference with

legal mail without alleging any harm as a result of the

unauthorized opening failed to state a claim under Section 1983). 

Nor has he demonstrated any improper motive or ensuing harm, such

as interference with his right to counsel or access to the

courts. Accordingly, I conclude that he has failed to allege a

cognizable First Amendment violation and recommend dismissal of

this claim.

2. Disciplinary Retaliation

Carey alleges that defendants repeatedly subjected him to

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16

unwarranted disciplinary actions and searches to harass him and

to “drum up” evidence for use in his criminal proceedings. 

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

inmates with 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). To prevail on a

retaliation claim, an inmate must show: (1) conduct which led to

the alleged retaliation was constitutionally protected; (2) that

he suffered some adverse action at the hands of prison officials;

and (3) that his constitutionally protected conduct was a

substantial or motivating factor in the decision to discipline

him. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). 

Carey alleges that defendants retaliated against him “at the

behest of the Merrimack County Attorney’s Office and the

Manchester Police Department.” He has not identified any

constitutionally protected conduct which led to the retaliation. 

Nor has he alleged that his constitutionally protected conduct

was a motivating factor in the decision to discipline him. 

Accordingly, I conclude that he has failed to state a cognizable

retaliation claim and recommend that it be dismissed. 

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17

3. Request for Transfer

Carey requests a transfer from the HCDOC to the CCDOC, where

he was previously incarcerated and where the conditions of

confinement allegedly are more favorable and less restrictive. 

Construed liberally, the complaint alleges that HCDOC officials

have violated Carey’s due process rights by denying his request

to be transferred to the CCDOC.

“The Due Process Clause does not protect every change in the

conditions of confinement having a substantial adverse impact on

the prisoner.” Bazzetta v. McGinnis, 423 F.3d 557, 566 (6th Cir.

2005)(citing Sandin v. Conner, 515 U.S. 472, 478 (1995)). See

also Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)(stating that

not every prison action that adversely affects the prisoner

requires due process, such as transfer to a substantially less

agreeable prison). It is well-settled that a prisoner has no

constitutional right to be incarcerated in a particular prison

and that he may be transferred for any reason or for no reason at

all, regardless of differing conditions. See Meachum v. Fano,

427 U.S. 215, 225-28 (1976). Even a transfer to a more

restrictive facility with more burdensome conditions is within

the normal limits or range of custody which the conviction has

authorized the State to impose. Id. at 225 (transfer of an

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18

inmate from one correctional facility to another, without more,

does not violate the inmate’s constitutional rights, even where

conditions in one facility are more disagreeable). Accordingly,

I conclude that the HCDOC’s refusal to transfer Carey to the

CCDOC, a less restrictive or more amenable facility, does not

rise to the level of a constitutional violation. I therefore

recommend that his request for transfer be denied.

II. State Law Claims

Carey alleges that the unnamed HCDOC dentist subjected him

to “gross medical negligence” by failing to properly treat his

broken teeth and injured jaw. Although the facts alleged sound

only in negligence, the negligence claim is so related that it

forms part of the “same case or controversy” of the Eighth

Amendment denial of adequate dental care claim. See 28 U.S.C. §

1367(a) (providing for supplemental jurisdiction over claims that

are so related they form part of the same case or controversy). 

Accordingly, I conclude that this Court may exercise supplemental

jurisdiction over the dental negligence claim. 

Carey further alleges that Dr. Ward subjected him to “gross

medical negligence” by failing to properly treat the lump on his

neck, the injuries to his knee and ankle and his preexisting

umbilica hernia and deviated septum. Because his state law

Case 1:05-cv-00274-PB Document 11 Filed 11/22/05 Page 18 of 20
19

medical negligence claim is conclusory and fails to present

sufficient predicate facts, I recommend that it be dismissed in

its entirety.

Conclusion

For the reasons stated above, I find that Carey has stated

an Eighth Amendment denial of adequate dental care claim, and a

related state law negligence claim, against the unnamed HCDOC

dentist. He has also stated Eighth Amendment failure to protect

claims against the HCDOC and O‘Mara. I recommend dismissal of

all remaining claims. I further recommend that the motion for

transfer be denied. 

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. §

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20

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: November 22, 2005

cc: William J. Carey, pro se

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