1Rix titles his original complaint (document no. 1)

“Petition for Writ of Habeas Corpus Petition in Equity” and his

amended complaint (document no. 5) “Amended petition in Equity.” 

I find, however, that Rix has alleged a violation of his federal 

constitutional rights by state actors, and that his claim is

therefore a civil rights action under 42 U.S.C. § 1983, which

creates a cause of action against those who, acting under color

of state law, deprive individuals of “any rights, privileges or

immunities secured by the Constitution and laws” of the United

States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled

on other grounds by Daniels v. Williams, 474 U.S. 327 (1986);

Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). I

will consider both his original and amended petitions, in the

aggregate, to be the complaint in this matter.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Michael D. Rix

v. Civil No. 05-cv-354-JD

Fredrick Serna, et al.

REPORT AND RECOMMENDATION

Michael Rix has filed suit pursuant to 42 U.S.C. § 1983,1

alleging that the defendants have violated his Fourteenth

Amendment due process rights and his Eighth Amendment right not

to be subjected to cruel and unusual punishment, and related

claims under state law. Because Rix filed this action as a

prisoner proceeding pro se and in forma pauperis, the matter is

Case 1:05-cv-00354-JD Document 7 Filed 02/21/06 Page 1 of 16
2

before me for preliminary review to determine whether the

complaint states a claim upon which relief might be granted. See

28 U.S.C. § 1915A; 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

magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation advising the district

judge 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

Case 1:05-cv-00354-JD Document 7 Filed 02/21/06 Page 2 of 16
2Rix has requested injunctive as well as monetary relief in

this action. Because Rix has now been released from the SCHC I

find that his claims for injunctive relief are moot and I will

not consider them further.

3

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

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). 

Application of this standard 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

Michael Rix was incarcerated at the Strafford County House

of Corrections (“SCHC”) in March of 2005. Rix was held at the

SCHC pending trial until he was sentenced on June 6, 2005. Rix

was released from the SCHC on November 2, 2005.2 

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4

1. Claims Related to Due Process in SCHC Disciplinary Hearing

During his incarceration at the SCHC, Rix alleges that he

was falsely accused of committing a disciplinary infraction by

corrections officer Paul Giampa. Rix alleges that the hearings

officer, Fredrick Serna, was aware that the charges were false

but found Rix guilty of the infraction anyway. In preparing for

the hearing, Rix twice requested copies of Giampa’s statements

against him, but was denied access to the statements. Rix

alleges that he was unable to adequately prepare to defend

himself against the disciplinary charges because he was denied

access to the statements of his accuser. Rix was found guilty of

the infraction and was sanctioned with ten days in segregation. 

The sanction was suspended. 

Rix alleges that prior to the disciplinary hearing, his SCHC

employment was terminated and his trustee status was revoked as a

result of the disciplinary charges. Neither his job nor his prehearing security status was restored. Further, Rix alleges that

he was denied reassignment to any ohter facility position

requiring a lower classification status. Rix alleges damages

resulting from the loss of his lower security rating and loss of

employment and wages.

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3“Diabetes mellitus” is described as a chronic syndrome of

impaired carbohydrate, protein, and fat metabolism owing to

insufficient secretion of insulin or to target tissue insulin

resistance. It occurs in two major forms: insulin-dependent

diabetes mellitus (type I) and non-insulin-dependent diabetes

mellitus (type II), which differ in etiology, pathology,

genetics, age of onset, and treatment. Type I diabetes tends to

a higher incidence of microangiopathy (affecting the retinas,

kidneys, and basement membrane of arterioles throughout the body)

than type II; type II diabetes is classically accompanied by

macroangiopathy, leading to premature atherosclerosis (myocardial

infarction) and cerebrovascular accident. Both types are

associated with disease of small and large blood vessels. 

Dorland’s Illustrated Medical Dictionary (28th ed. 1994) at 457.

5

2. Claims Related to Medical Care

A. Medical Diet

Rix alleges that he suffers from severe diabetes mellitus.3

As a result, Rix requires a special diabetes-specific diet. Rix

alleges that he was denied all special meal requests by SCHC

officials, despite the fact that they were aware of his need for

a medically appropriate diet. Instead, Rix alleges that he was

provided with a “modified carbohydrate” meal that was

inappropriate for his medical condition. 

B. Administration of Insulin

Rix alleges that the medical care provider employed by the

SCHC mixed two types of insulin together which caused Rix’s blood

sugar to rapidly deplete. The incorrect administration of 

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6

medication caused Rix to suffer temporary blindness, and almost

caused him to become comatose or die. 

C. Toenail Care

Rix claims that diabetics cannot manicure their own feet at

the SCHC because of the risk of infection involved. As a result,

the SCHC medical staff are responsible for seeing to Rix’s

toenail cutting. Rix alleges that the SCHC staff failed to cut

his toenails for an extended period of time, resulting in Rix

having to walk in a great deal of pain for a two-month period

because his toenails had grown under his toes. Rix’s repeated

complaints of pain resulting from the length of his toenails were

ignored by medical staff, even though the SCHC doctor had ordered

his toenails to be cut. Eventually, Rix was sent to a podiatrist

to deal with the foot problems that resulted from the SCHC

medical staff’s inattention.

D. Cyst

During Rix’s first several months at the SCHC, Rix and other

inmates developed unexplained cysts. Rix developed a large cyst

on his face that became painful and infected. Rix was eventually

sent to Wentworth-Douglas Hospital in Dover, New Hampshire where

he required surgery to treat the cyst. 

Case 1:05-cv-00354-JD Document 7 Filed 02/21/06 Page 6 of 16
7

After surgery, Rix was returned to the SCHC with

instructions for the care of his surgical wound, including proper

maintenance of a drainage wick that had been left in Rix’s face. 

The SCHC nurse was examining Rix’s wound and, against the

directions of the post-surgical instructions, pulled the wick in

such a way that the knot holding it in place then had to be

removed, which caused the wick itself to retreat into the wound. 

Instead of being immediately removed, the wick was allowed to

remain in the wound, which healed over it. The SCHC doctor

attempted to reopen the wound and retrieve the wick with a pair

of tweezers and without anesthesia but was unsuccessful. 

Eventually, the doctor at SCHC recommended that Rix undergo

further surgery to remove the wick. The SCHC never took any

action on the recommendation, however, and Rix did not receive

further surgery. 

Several months later, the wound became infected. The SCHC

medical staff placed Rix on a course of antibiotics which was

unsuccessful. The infection increased and spread. The wound in

Rix’s face burst prior to his scheduled surgical consult. The

SCHC nurse attempetd to treat the wound by squeezing it

painfully, which was not only ineffective, it caused the area to

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8

swell so badly that surgery had to be postponed. At the time of

his filing, Rix stated that the wick was still in his face and

remained an infection risk.

Discussion

1. Due Process Claims Relating to Disciplinary Process

The Fourteenth Amendment guarantees that no State shall

“deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV. In order to assert a

Fourteenth Amendment due process claim, the plaintiff must allege

that he was deprived of a liberty interest protected by the

Constitution or by state law. Wolff v. McDonnell, 418 U.S. 539,

556 (1974) (citing Haines v. Kerner, 404 U.S. 519 (1972); 

Dominique v. Weld, 73 F.3d 1156, 1158 (1st Cir. 1996). In order

to state a due process violation in the context of a disciplinary

hearing, therefore, a prisoner must identify a liberty interest

of which he was deprived. See Sandin v. Conner, 515 U.S. 472,

483-84 (1995). Such a liberty interest is, generally, “freedom

from restraint which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the Due

Process Clause of it’s own force, nonetheless imposes atypical

and significant hardship on the inmate in relation to the

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9

ordinary incidents of prison life.” Id. at 484 (internal

citations omitted). 

Here, Rix was serving a sentence in the SCHC when he was

charged with a disciplinary infraction. Rix takes issue with his

inability to defend himself against the charge against him as a

result of being denied access to statements made against him in

prehearing discovery. 

After his hearing, Rix alleges that he was officially

sanctioned with ten days of suspended time in the punitive

segregation unit. Rix has not alleged that he ever had to serve

time in punitive segregation as a result of these charges, or

that any sanctions were imposed that were so severe that they

were not a typical and reasonably foreseen part of prison life. 

Accordingly, I find that Rix has not alleged a liberty interest

of which he was deprived. I must therefore find that Rix has not

alleged a due process violation for the loss of his job, and I

recommend that this claim be dismissed.

Rix also alleges that he was unofficially punished for his

disciplinary infraction with a loss of trustee status, a change

in security status and a loss of his SCHC job and the wages he

would have earned at that job. To the extent Rix alleges that

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10

his due process rights were violated by the loss of his prison

job, “it is clear that unless state laws or regulations are to

the contrary, prisoners have no vested property or liberty rights

to either obtain or maintain prison jobs.” Dupont v. Saunders,

800 F.2d 8, 10 (1st Cir. 1986). Rix therefore lacks any federal

due process claim with respect to not being allowed to have a job

in the SCHC. 

An inmate has no liberty interest in being housed or

classified in a particular facility or in a particular security

status. Meachum v. Fano, 427 U.S. 215, 225 (1976); Montanye v.

Haymes, 427 U.S. 236, 242 (1976) (discussing that the holding in

Meachum dictates that “[a]s long as the conditions or degree of

confinement to which the prisoner is subjected is within the

sentence imposed upon him and is not otherwise violative of the

Constitution, the Due Process Clause does not in itself subject

an inmate’s treatment by prison authorities to judicial

oversight.”). “[A]n increase in burdensome conditions does not

in itself implicate the due process clause.” Sisbarro v. Warden,

Mass. State Penitentiary, 592 F.2d 1, 3 (1st Cir. 1979) (citing

Meachum, 427 U.S. at 224-25). Here, Rix does not allege facts

sufficient to state a constitutional violation for security

Case 1:05-cv-00354-JD Document 7 Filed 02/21/06 Page 10 of 16
4Because Rix was a pretrial detainee for the first several

months he was housed at the SCHC, the SCHC’s constitutional

obligation to provide him with adequate medical care during that

time flows from the Fourteenth Amendment’s Due Process Clause,

rather than the Eighth Amendment’s prohibition against cruel and

unusual punishment. Bell v. Wolfish, 441 U.S. 520, 555 (1979). 

Because the Fourteenth Amendment is at least as demanding as the

Eighth Amendment in this context, I find that any claim stated

under the Eighth Amendment is also stated under the Fourteenth

Amendment for events that occurred during the period before Rix

was sentenced.

11

status changes within the SCHC or the addition of burdensome

conditions of confinement occasioned by those changes. 

Therefore, I recommend that Rix’s due process claims relating to

his changed security status be dismissed.

Rix has named the following defendants to the due process

claims alleged: Serna, Giampa, SCHC Superintendent Warren

Dowaliby and SCHC Deputy Superintendent Jeffrey McPhearson. 

Because I recommend that the due process claims be dismissed on

the basis that Rix has not stated a due process claim upon which

relief might be granted, I recommend the dismissal of these

defendants from this action as well.

2. Medical Care Claims

The Eighth Amendment protects prison inmates from prison

officials acting with deliberate indifference to their serious

medical needs.4 See Farmer v. Brennan, 511 U.S. 825, 831 (1994). 

Case 1:05-cv-00354-JD Document 7 Filed 02/21/06 Page 11 of 16
12

To assert a viable cause of action for inadequate medical care,

an inmate must first state facts sufficient to allege that the

plaintiff has a serious medical need for which adequate care has

not been provided. Farmer, 511 U.S. at 831; Rhodes v. Chapman,

452 U.S. 337 (1981); Estelle, 429 U.S. at 106. The inmate must

then allege that a responsible prison official was aware of the

need or of the facts from which the need could be inferred, and

still failed to provide treatment. Estelle, 429 U.S. at 106. A

serious medical need is one that involves a substantial risk of

serious harm if it is not adequately treated. Barrett v. Coplan,

292 F. Supp. 2d 281, 285 (D.N.H. 2003); Kosilek v. Maloney, 221

F. Supp. 2d 156, 180 (D. Mass. 2002) (citing Farmer, 511 U.S. at

835-47); see also Gaudreault v. Municipality of Salem, Mass., 923

F.2d 203, 208 (1st Cir. 1990), cert. denied, 500 U.S. 956 (1991)

(defining a serious medical need as 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

at is so obvious that even a lay person would easily recognize

the necessity for a doctor’s attention.’”). 

“Adequate medical care” is treatment by qualified medical

personnel who provide services that are of a quality acceptable

Case 1:05-cv-00354-JD Document 7 Filed 02/21/06 Page 12 of 16
13

when measured by prudent professional standards in the community,

tailored to an inmate’s particular medical needs, and that are

based on medical considerations. United States v. DeCologero,

821 F.2d 39, 42-43 (1st Cir. 1987). This does not mean that an

inmate is entitled to the care of his or her choice, simply that

the care must meet minimal standards of adequacy. Deliberate

indifference may be found where the medical care provided is “so

clearly inadequate as to amount to a refusal to provide essential

care.” Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991). 

Constraints inherent in a prison setting may affect the choice of

care provided, and may be relevant to whether or not prison

officials provided inadequate care with a deliberately

indifferent mental state. Wilson v. Seiter, 501 U.S. 294, 302

(1991). 

Rix has alleged that he has a serious medical condition,

diabetes mellitus, and that the SCHC officials were aware of his

condition and his need for treatment. He has alleged that, in

fact, he received some treatment, but that his medical care was

in many ways inadequate to meet his needs. Rix specifically

alleges that the SCHC medical staff were aware of his need for an

appropriate diet, because they did give him a special diet but

Case 1:05-cv-00354-JD Document 7 Filed 02/21/06 Page 13 of 16
14

not one that was appropriate to his condition, that they were

aware of his need for insulin because he was provided insulin

that was administered improperly, that they were aware of his

need for foot hygiene because it was ordered by an SCHC

physician, and aware of his need for cyst treatment, because some

treatment was provided. Rix alleges, however, that he was denied

adequate medical care in four ways: he was denied a medically

appropriate diet, denied appropriately administered insulin to

treat his diabetes, denied adequate foot care, and denied

adequate care of a post-surgical wound. All of these

deprivations, Rix alleges, were the result of the deliberate

indifference of SCHC personnel to his serious medical conditions

and treatment needs.

Because Rix has alleged a serious condition, a known need

for treatment, and treatment that was inadequate to meet those

needs, he has sufficiently alleged that he was denied medical

care to which he is constitutionally entitled in the form of a

medical diet, correctly administered insulin, foot care, and cyst

treatment to state a claim upon which relief might be granted. 

However, Rix has failed to name any defendant to this claim. 

Accordingly, in an Order issued simultaneously with this Report

Case 1:05-cv-00354-JD Document 7 Filed 02/21/06 Page 14 of 16
15

and Recommendation, I direct Rix to amend his complaint to state,

with specificity, who was responsible for denying him the medical

care to which he was entitled in each of these four instances. 

Rix must name specific individuals and state with particularity

what each named defendant did to violate his constitutional right

to adequate medical care. If Rix is not in possession of the

names of medical care providers at the SCHC, he is entitled to

receive a copy of his medical records, which should contain the

names of the medical personnel at the SCHC responsible for his

care and treatment.

Conclusion

For the reasons stated herein, I recommend that the due

process claims and all of the named defendants be dismissed from

this action. In an Order issued simultaneously with this Report

and Recommendation, I direct Rix to amend his complaint in order

to name defendants to his inadequate medical care claims.

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 

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16

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: February 21, 2006

cc: Michael D. Rix, pro se

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