UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jonathan Andrew Perfetto

v. Civil No. 06-cv-307-SM

Bruce W. Cattell, Warden,

New Hampshire State Prison, et al.

REPORT AND RECOMMENDATION

Plaintiff has written a letter to the Court offering a list

of corrections to the Report and Recommendation I issued on

February 23, 2007 (document no. 31). I will treat this letter as

a motion to clarify and amend the complaint in this matter, as

well as a motion to correct certain items in the Report and

Recommendation.

Plaintiff lists 17 numbered items in his motion (hereinafter

referred to as Items #1-17) that he claims have been erroneously

reported in the Report and Recommendation. Of these seventeen

items, ten are actually simple clarifications of what was written

in the complaint and in the Report and Recommendation, while the

remainder of the items are more aptly characterized as

substantive amendments to the complaint. 

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Clarifications/Corrections

Items #2, 9, 10, 12 & 16 -- Misspelling of Defendant Isman’s

Name: Perfetto states that the defendant identified in my Report

and Recommendation as FNU “Ismam” is, in fact, defendant FNU

“Isman” (emphasis added). The misspelling is noted and if this

Report and Recommendation is approved, my previously issued

Report and Recommendation and Order will be considered corrected

as indicated.

Item #4 -- Clarification Regarding Housing in Dayroom: It

is not clear from this proposed correction what Perfetto seeks to

change about his complaint or about the Report and

Recommendation. To the extent that Perfetto complains that other

inmates were denied the use of a dayroom during Perfetto’s stay

there, that fact is noted. That denial, however, is not relevant

to any of the claims raised in Perfetto’s complaint. To the

extent Perfetto complains that he was denied a cell after Dr.

Fellows saw him and placed him on a precautionary watch, that

fact was addressed in my Report and Recommendation and no

correction or clarification is necessary. Accordingly, I

recommend that the request to correct or clarify be denied.

Case 1:06-cv-00307-JL Document 33 Filed 03/22/07 Page 2 of 7
1On page 10 of my Report and Recommendation, it alleges

incidents where the defendants are alleged to have failed to

protect Perfetto on September 20, 2003 and November 15, 2006. 

Those dates should be September 20, 2006 and November 5, 2006

respectively. 

According to the original complaint, Perfetto alleges a

problem in the dispensation of his medication from July 2004

through August 5, 2004. The Report and Recommendation

incorrectly stated the second date as August 15, 2004. Item #11

of the motion to correct identifies the correct date as August 5,

2003. Construing the pleadings in the manner that makes the most

sense, I find that the date should properly read August 5, 2004.

On Page 31 of my Report and Recommendation, where I wrote

“August 14, 2006,” the document should read August 4, 2006.

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Items #6, #7, #11 & 14 -- Corrected Dates: Perfetto

corrects four dates that were in his original complaint but

incorrectly reported in the Report and Recommendation.1 All of

these corrections are accepted and my previously issued Report

and Recommendation and Order will be considered so corrected upon

acceptance of this Report and Recommendation.

Amendments

Item #1 -- Number of John Doe Defendants: Perfetto

alleges that he listed seven John Does in his complaint while the

Report and Recommendation stated there were six. In fact,

Perfetto’s initial complaint (document no. 15) lists “John Doe

x6" as a defendant to this action. If Perfetto seeks to add a

John Doe defendant at this time, this addition is more properly

characterized as an amendment to the complaint than as a simple

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correction. While I recommend that Perfetto be allowed to amend

his complaint to add a John Doe defendant, I note that at this

time, the distinction between six and seven John Does is without

a difference, because, as fully explained in my initial Report

and Recommendation, Perfetto will be unable to serve any of the

John Doe defendants until he has identified them by name, and

successfully moved to amend his complaint to so identify those

defendants.

Item #3, #8 & 17 -- Supervisory Liability of Defendant Ash: 

Perfetto explains that although his initial complaint described

defendant Ash as supervising the actions of defendant Valente,

Ash was not, in fact, Valente’s supervisor. Instead, Perfetto

now alleges that he meant to say that Ash witnessed Valente’s

actions. As such, I find that Ash, by not providing a toilet for

Perfetto’s use on one occasion between May 2004 and August 2004

is properly named as a defendant to the claim alleging a denial

of sanitary conditions in his individual, rather than his

supervisory, capacity. I recommend that this amendment to the

complaint be granted to reflect that Ash is not subject to

supervisory liability in this matter and that the supervisory

liability claim against Ash be dismissed from this action.

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Item #5 -- Defendants to Classifications Claim: In his

complaint (document no. 24), Perfetto specifically listed “Sgt.

Mosher, Sgt. Washburn, and Unit Manager Tim Moquin” to his

“Allegation #11: ‘Classification Violations.’” That charge

specifically stated that on August 24, 2006, Perfetto was

upgraded to C-4 status, was written up three times, and forced

Moquin to keep Perfetto at C-4 status for sixty days beyond what

had originally been directed. Accordingly, all three of those

defendants were discussed in my Report and Recommendation. I

recommended dismissal of that claim, however, based on the fact

that an inmate has no right to be classified in any particular

security status. In his motion, Perfetto now states that

defendants Washburn and Mosher “have nothing to do with giving me

a class board as they don’t work in SHU anymore. It was up to

Unit Manager Moquin and Case Counselor Kirker.” This allegation

represents a significant amendment from the complaint filed. 

Case Counselor Kirker was never mentioned in any of Perfetto’s

previously submitted pleadings and it appears that Perfetto now

seeks to add Kirker as a defendant to this action. Because I

recommended, however, that this claim be dismissed as not viable

against any defendant, I recommend that this amendment be denied

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as moot. Should my recommendation to dismiss the improper

classification claim not be approved by the District Judge,

Perfetto is free to seek again to amend the claim to add or

remove defendants.

Item #13 -- History of Administrative Greivance Filings: 

Perfetto attempts to clarify the history of his administrative

grievance filings. The Report and Recommendation reflects what

was stated in the original complaint. To the extent he is

seeking to add information to the complaint originally filed

regarding details of his administrative grievance filings, I

recommend he be permitted to do so. 

Item #15 -- Defendant Marsh: Perfetto seeks to dismiss

defendant Marsh from his retaliation claim. Although his initial

complaint named her as a defendant to that claim, Perfetto now

alleges that she did not participate in the retaliation. I

recommend that motion be granted and that Marsh be dismissed from

this action. 

Conclusion

I recommend that the Court acknowledge the corrections

numbered Item #2, #6, #7, #9-#12, #14 and #16 above as

corrections or clarifications to the information in my February

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23 Report and Recommendation and Order. I further recommend that

the Court decline to clarify my previously issued documents as to

Item #4. Finally, I recommend that the Court accept the

amendments to the complaint identified as Items #1, #3, #8, #13,

#15, and #17, and decline to amend the complaint as requested in

Item #5.

Any 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 Unauthorized Practice of

Law Comm. 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: March 22, 2007

cc: Jonathan Andrew Perfetto, pro se

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