1Plaintiff has not provided a first name for Dr. Eppolito. 

The other defendants named in the complaint are Nurse Gail

McKenna, Nurse Practitioner Judy Baker, the medical departments

of the New Hampshire State Prison (“NHSP”) and the Northern New

Hampshire Correctional Facility (“NCF”), NCF Warden Larry

Blaisdell, NCF Chaplain Hoyt, and New Hampshire Department of

Corrections (“NHDOC”) Commissioner William Wrenn. I construe the

claim against the NCF medical department to be against NCF

medical director Robert McLeod, who I find Chambers intended to

name as a defendant. I further find that Chambers intended to

name Unit Manager Thyng, Unit Counselor Judy Smiley, Major Cox,

NHSP Warden Bruce Cattell, and NHDOC Deputy Commissioner Greg

Crompton as defendants, as they are alleged in the body of the

complaint to have caused the harm alleged by Chambers.

2Chambers filed his initial complaint in this matter

(document no. 1) on December 1, 2006. Chambers then filed an

amended complaint on March 7, 2007 (document no. 10). I find

that these documents, considered together, will comprise the

complaint in this matter for all purposes. Any future amendment

to the complaint will need to proceed by proper motion to amend

filed pursuant to United States District Court for the District

of New Hampshire Local Rule 15.1.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Randolph L. Chambers

v. Civil No. 06-cv-449-PB

Dr. Eppolito, et al.1

REPORT AND RECOMMENDATION

Before the Court is Randolph Chambers’ complaint (document

nos. 1 & 10),2 filed pursuant to 42 U.S.C. § 1983. Chambers, an

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 1 of 42
2

inmate at the New Hampshire State Prison (“NHSP”), alleges that

the defendants, employees of the New Hampshire Department of

Corrections (“NHDOC”), have violated a number of his rights

during his incarceration. The complaint is before me for

preliminary review to determine whether, among other things, it

states any 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). For the reasons

stated herein, I recommend that the following claims be

dismissed: ADA and Rehabilitation Act claims alleging inadequate

pain medication, the claims alleging denial of medical

specialists, medical testing, failure to wake Chambers for

medication, and denial of a video game, and the § 1983 claim for

a denial of free medical care. I also recommend that defendants

Cox and Crompton be dismissed from this action. I direct, in an

Order issued simultaneously with this Report and Recommendation

(hereinafter the “Simultaneous Order”), that the claim alleging

an Eighth Amendment violation for denial of pain medication

proceed against defendants Blaisdell, McLeod, Baker, Wrenn, and

Eppolito; the ADA and Rehabilitation Act claim for the denial of

accommodations in the form of passes proceed against defendants

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 2 of 42
3

McKenna, Eppolito, and Baker; the inadequate vision care claims

proceed against defendants Thyng, Smiley, Cattell, and Wrenn; and

the kosher diet, free exercise, and due process claims proceed

against defendant Hoyt. 

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 must conduct a preliminary review and prepare a

report and recommendation discussing 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 in favor of the pro se

party. See Ayala Serrano v. Lebron Gonzales, 909 F.2d 8, 15 (1st

Cir. 1990) (following Estelle v. Gamble, 429 U.S. 97, 106

(1976)). “The policy behind affording pro se plaintiffs liberal

interpretation is that if they present sufficient facts, the 

court may intuit the correct cause of action, even if it was

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 3 of 42
4

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). This

review 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

I. Denial of Adequate Medical Care

A. Pain Medication

Chambers has a number of serious medical problems which

cause him a great deal of pain. Chambers needs regular medical

attention, both to treat his underlying medical issues and to

manage his pain. Chambers alleges that on or about December 8,

2005, he was transferred from the NHSP to the Northern New

Hampshire Correctional Facility (“NCF”). On or about December 9,

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 4 of 42
5

2005, Chambers saw defendant Baker, a nurse practitioner who

continued the pain treatment medication that Chambers had been

receiving at the NHSP, which was 15mg of morphine administered in

a time-release formula twice a day. Baker increased the dosage

of morphine to 30mg twice a day when 15mg was no longer effective

in lasting through the day. Shortly thereafter, Chambers also

needed “in between” medication to manage his pain between doses

of morphine. For that, Baker prescribed 100mgs of Tramadol, to

be administered three times a day. Chambers received this dose

of Tramadol in December of 2005 and January of 2006. In

addition, to manage pain, Chambers was prescribed lidocaine

patches. Two lidocaine patches were placed on Chambers’ back

each evening at 9:00. Due to Chambers’ medical conditions, it

was painful for him to engage in the twisting and turning

necessary to remove the patches himself. The nurse on duty the

following morning would remove the patches for Chambers prior to

administering his first dose of pain medication. 

On June 13, 2006, Chambers reports that defendant McKenna

was the nurse working the morning shift. Chambers went to see

her to get his medication and to have his lidocaine patches

removed. McKenna refused to remove the patches, and made

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 5 of 42
6

Chambers do it himself. Chambers says that this caused him a

great deal of pain. After that incident, Chambers wrote a

request slip to the NCF doctor, Eppolito, asking that his medical

chart instruct the nurses to remove the lidocaine patches. 

Eppolito saw Chambers on June 26, 2006, and watched Chambers try

to remove the patches. Eppolito determined that it was necessary

for a nurse to assist in the removal of the patches. Eppolito

noted in Chambers’ chart that a nurse should remove the patches. 

McKenna, however, still refused to remove the patches for

Chambers. Chambers reports that McKenna even withheld Chambers’

pain medication until Chambers removed the patches himself. 

On June 22, 2006, Chambers wrote to the NCF medical

director, Robert McLeod, about nurses removing his lidocaine

patches, but did not receive an answer. On July 2, 2006,

Chambers wrote to Eppolito and NCF Warden Blaisdell complaining

about McKenna’s actions. Blaisdell responded that the situation

was “taken care of.” Chambers also filed grievances, addressing

his complaint about McKenna’s actions, to Baker and NHDOC

Commissioner William Wrenn. The situation was not remedied. 

Chambers claims that, instead, Baker halved his morphine dosage 

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 6 of 42
3Chambers had been placed at the Secure Housing Unit at the

NHSP and then returned to the NCF on August 9, 2006. The

complaint does not state the reason for this temporary housing

change.

4Chambers alleges that between August 16 and August 25,

2006, he was granted an elevator pass. However, the elevator was

broken during this period.

7

and discontinued the use of lidocaine patches in retaliation for

the grievances he had filed concerning McKenna.

On July 20, 2006, Chambers wrote to Baker but received no

response. On August 2, 2006, Chambers wrote to Baker again about

restarting his pain medication. On August 8, 2006, Baker

responded to Chambers and told him to report to sick call when he

returned to NCF.3 On August 9, 2006, Chambers went to sick call. 

Baker did not see Chambers at that time. 

Instead, on August 9, 2006, Chambers saw McKenna. Chambers

asked McKenna for an elevator pass, as he had had a bad flare-up

of his asthma and had recently been on a “breathing machine.” 

Without an elevator pass, Chambers was forced to walk up three

flights of stairs to reach his housing unit, which caused him a

great deal of pain. Chambers also requested that he be given a

pass for the further use of a breathing machine. McKenna denied

Chambers both passes.4 Eppolito also refused to grant Chambers

an elevator pass. Chambers further alleges that he asked Baker

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 7 of 42
8

and Eppolito to arrange for him to see a respiratory specialist,

as he had been treated nine times for breathing problems by NHDOC

medical staff and had never received a diagnostic evaluation,

from a specialist or otherwise, to determine the root of his

respiratory difficulties. Chambers’ request for a respiratory

specialist was denied. Additionally, Baker took away passes

issued to Chambers allowing him to move slowly through the

prison, and allowing him to have a plastic chair in his cell. 

Baker then refused to see Chambers, and instead referred all

of Chambers’ requests for medical care directly to Eppolito. 

Eppolito told Chambers that he would recommend that Chambers go

to a pain management specialist, and that he would follow the

pain specialist’s recommendations. An NHDOC committee, however,

denied Chambers’ request to see a pain management specialist. 

Chambers’ NHDOC physical therapist, Bernie Campbell, recommended

that Chambers get a diagnostic MRI test. Chambers reports that

despite Campbell’s recommendation, he had yet to receive an MRI

at the time this action was filed.

On October 17, 2006, Chambers saw Eppolito and asked for

additional “in between” medication. Eppolito got mad at Chambers

for making that request and left the room. Eppolito refused to

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 8 of 42
9

provide Chambers with additional treatment for pain. Chambers

states that he wrote a request slip that was disrespectful to

Eppolito. Chambers alleges that Eppolito’s denial of necessary

treatment for Chambers’ pain was retaliation for the

disrespectful request slip. Specifically, Eppolito retaliated

against Chambers by reversing his own medical judgment that

Chambers needed 30mg of morphine twice daily, and allowing Baker

to reduce the dosage to 15mg twice daily, and then to further

reduce the dosage to 20mg of a morphine formula that did not

provide time-released pain relief. Eppolito did this, Chambers

claims, knowing that it would cause an increase in Chambers’ pain

level.

Chambers also states that he received three disciplinary

reports for missing three pain medication dispensation

appointments at NCF, and also failing to go to the medical

department to sign a form indicating that he refused his narcotic

pain medications. Chambers asserts that for each offense a five

dollar fee was assessed against him. When Chambers appealed the

disciplinary finding, the appeal was denied by Cox, who stated

that Chambers was required to wake himself up to get his pain

medications. Chambers states that diabetics and inmates with

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 9 of 42
10

appointments for blood tests are woken up to receive their

medication or have their blood drawn, but that inmates are not

woken up to get pain medication. Chambers appealed the denial to

Blaisdell and Wrenn. Both appeals were denied.

B. Vision Care

Chambers wrote to Thyng to request an appointment to have

his eyes examined. Chambers’ unit counselor, Judy Smiley,

responded to his request, telling Chambers that there was no

NHDOC eye doctor, that twenty inmates are scheduled to see an eye

doctor every two months, and that there is a nine to ten month

waiting list to see an eye doctor. Chambers grieved the denial

of an eye doctor appointment to Cattell and Wrenn, but his

appeals were denied. Chambers further alleges that when he was

transferred to the NHSP from the NCF to serve time in punitive

segregation on December 7, 2006, his eyeglasses were lost during

the transport. He requested new glasses and was told that he was

only entitled to receive a new pair of glasses from the NHDOC

every two years, and, therefore, he was not eligible for new

glasses until April of 2007. Chambers was also advised that he

could request new glasses from Concord Eye Care, rather than

through the NHDOC, but that he would have to pay for the eye exam

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 10 of 42
5Chambers was told that if he wished, he could make a claim

for lost property against the State of New Hampshire, and apply

any reimbursement he received for his lost glasses to the cost of

new eyeglasses. Claims alleging the theft, damage, loss or other

misappropriation of property are not actionable under 42 U.S.C. §

1983 where, as here, the state has an adequate post-deprivation

remedy available. Hudson v. Palmer, 468 U.S. 517, 533 (1984);

see N.H. Rev. Stat. Ann. 541-B:9(II) & (IV), and 541-B:14 (1997)

(providing a post-deprivation means of recouping property loss

attributable the State).

6Initially, Chambers sought preliminary injunctive relief

directing the NHDOC to provide him with glasses. However,

according to an objection to Chambers’ request filed by the NHDOC

(document no. 16), Chambers was seen by an eye doctor on April 4,

2007, and will be receiving new glasses in short order. While

the provision of vision care may resolve issues related to a

preliminary injunction, Chambers may still raise a § 1983 claim

for the period of time during which he alleges he was denied

adequate vision care.

11

and glasses himself.5 Chambers has been without eyeglasses since

December 7, 2006,6 which he alleges has caused his vision to

worsen.

2. Charges for Medical Appointments

Chambers alleges that he is being charged for his sick call

visits, even when he has no money in his inmate account. As a

result, Chambers alleges that his inmate account is overdrawn. 

3. Denial of Kosher Diet

Chambers claims that during the time he was housed at NCF,

Chaplain Hoyt took away his kosher diet. Chambers claims that he

was not provided with due process or an opportunity to be heard

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 11 of 42
12

prior to having his kosher diet discontinued. Chambers further

alleges that his kosher diet was not taken away as a result of a

sanction imposed pursuant to a disciplinary report. Chambers

states that due to the denial of a kosher diet, he was denied the

ability to practice his religion.

4. Denial of One-Handed Video Game

Chambers alleges that the NHSP canteen has a video game unit

that inmates can buy. Chambers, however, has one hand, and

cannot play the video game that the canteen sells. On September

13, 2006, Chambers wrote a request to Thyng, asking that he be

allowed to order a one-handed game from an outside source. On

September 25, 2007, Chambers’ request was denied by Cattell on

the basis that the cover of the one-handed game is opaque and

therefore jeopardizes institutional security. Chambers alleges

that he grieved the denial of his request to the NHDOC

Commissioner, and that Deputy Commissioner Greg Crompton denied

the appeal. Chambers alleges that this denial has deprived him

of a reasonable accommodation for his disability, because the

game sold in the canteen is also opaque. Chambers asserts that 

the decision to deny him a one-handed video game constitutes

discrimination against Chambers based on his disability.

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 12 of 42
7The claims as identified herein will be considered for all

purposes to be the claims raised in the complaint. If Chambers

disagrees with this identification of the claims, he must do so

by proper objection to this Report and Recommendation or by

properly moving to amend his complaint.

842 U.S.C. § 1983 provides that:

Every person who under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen 

of the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the 

party injured in an action at law . . . .

13

Discussion7

I. Claims Related to Medical Care

A. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of State law, violate federal constitutional

or statutory law. See 42 U.S.C. § 19838; Parratt v. Taylor, 451

U.S. 527, 535 (1981) (overruled on other grounds by Daniels v.

Williams, 474 U.S. 327, 330-331 (1986)); Wilson v. Town of

Mendon, 294 F.3d 1, 6 (1st Cir. 2002). In order for a defendant

to be held liable under § 1983, his or her conduct must have

caused the alleged constitutional or statutory deprivation. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Soto v. 

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 13 of 42
14

Flores, 103 F.3d 1056, 1061-62 (1st Cir.), cert. denied, 522 U.S.

819 (1997). 

1. Eighth Amendment Claims

Claims of inadequate medical care in the prison context

arise under the Eighth Amendment, which protects prison inmates

from prison officials acting with deliberate indifference to

their serious medical needs. See Farmer v. Brennan, 511 U.S.

825, 831 (1994). To assert a viable cause of action for

inadequate medical care, an inmate must first state facts

sufficient to allege that the plaintiff had a serious medical

need for which adequate care was not provided. Id. at 832;

Rhodes v. Chapman, 452 U.S. 337, 347 (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. Mun’y of Salem, 923 F.2d 203, 208 (1st Cir. 1990),

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 14 of 42
15

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 a doctor’s attention”). 

“Adequate medical care” is treatment by qualified medical

personnel who provide services that are based on medical

considerations and are of a quality consistent with the prudent

professional standards in the community, tailored to an inmate’s

particular medical needs. 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. See Wilson v. Seiter, 501 U.S. 294,

302 (1991).

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 15 of 42
16

a. Pain Medication

Here, Chambers has alleged that he was denied his prescribed

medication, or denied the proper dosage of his prescribed

medication, by Baker and Eppolito, first when they halved his

morphine time-release dosage, and again, when they switched him

from a time-release to a non-time-release formula. Chambers also

alleges that McKenna delayed Chambers’ receipt of pain medication

when she withheld his medication until he removed his lidocaine

patches himself, even after she was instructed to remove the

patches by Eppolito. 

A prescription medication is, by definition, medical

treatment that has been deemed necessary by a medical

professional. I find, therefore, that intentionally withholding

Chambers’ medication, giving him less than the necessary dosage

of medication knowing that the lesser dose would not be

effective, or unreasonably delaying Chambers’ receipt of the

medication is actionable under § 1983. Accordingly, I find that

Chambers has stated claims against Baker and Eppolito for

intentionally undertreating his pain. In my Simultaneous Order,

I will direct that this claim be served on Baker and Eppolito. 

As to McKenna’s delaying the dispensation of medication until

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 16 of 42
17

Chambers removed his lidocaine patches himself, I do not find

that this act, in and of itself, constitutes a violation of

Chambers’ constitutional right to medical care. Chambers states

that Eppolito directed that pain medication should not be

administered until after the lidocaine patches were removed. 

While it might not have been appropriate for McKenna to require

Chambers to remove the patches, I do not find either that

isolated incidents of requiring Chambers to remove his own

patches or the several minutes of delay in receiving pain

medication caused by that requirement constitutes a deliberate

indifference to plaintiff’s need for medication to rise to the

level of a constitutional denial of adequate medical care in

violation of the Eighth Amendment.

Chambers alleges he was denied pain medication he needed at

regular intervals because unnamed prison officials refused to

wake him in time to receive the medication on three occasions. 

Chambers does not allege that he suffered harm as a result of

these three particular incidents and has failed, therefore, to

state a claim of constitutional magnitude. I recommend that any 

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 17 of 42
9Chambers does not state with specificity what legal claims

he intended to raise regarding the incidents where he slept

through his medication dispensation time and therefore did not

receive his medication, received three disciplinary reports, and

was assessed three five dollar fines. I have liberally construed

these allegations as attempts to state claims under the Eighth

Amendment, as addressed above, and under the ADA and the

Rehabilitation Act, as addressed below. I find that no other

arguable claims for relief have been alleged regarding these

three incidents.

18

Eighth Amendment claim Chambers intended to raise for a denial of 

medication, based on the failure to wake him up, be dismissed.9

b. Vision Care

An allegation of inadequate vision care can support a valid

§ 1983 action challenging the improper denial of medical care. 

See Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). Chambers

claims that he was deprived of a necessary eye examination from

December of 2006 until April 4, 2007, and that Thyng and Smiley

deprived him of his eyeglasses from December 7, 2006 until at

least April of 2007. I find, therefore, that Chambers has

alleged sufficient facts to state a cause of action for the

denial of eyecare, denial of eyeglasses, and the attendant

worsening of his vision. Chambers has also alleged that Cattell

and Wrenn were aware of, and failed to remedy, the denial of

proper vision care. In my Simultaneous Order, I direct 

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 18 of 42
19

that this claim proceed against defendants Thyng, Smiley,

Cattell, and Wrenn. 

c. Specialists and Medical Testing

Chambers alleges that he was denied the care of medical

specialists to treat his respiratory condition and his chronic

pain issues. Chambers alleges that the NHDOC medical staff could

not, or did not, adequately treat his pain, and failed to

properly diagnose a serious respiratory condition that caused

Chambers to be treated for breathing difficulties nine separate

times. Further, Chambers alleges that he was denied an MRI test

that was recommended by his physical therapist. 

Chambers states that the medical staff at the prison agreed

to send him to a pain management specialist, and to follow the

recommendations of that person, but that a “committee” denied him

access to the pain management specialist. To that end, I find

that Chambers has not alleged that any of the named defendants

were responsible for denying him a pain specialist, and I

recommend that claim be dismissed. As to the denial of a

respiratory specialist, Chambers does not allege that he did not

receive any medical treatment for his breathing difficulties at

all. And while Chambers indicated that he requested a breathing

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 19 of 42
20

machine, he does not assert facts sufficient to demonstrate that

the denial of a breathing machine rendered his care

constitutionally inadequate. Chambers said that he does not know

what is causing his breathing problems, but that lack of

knowledge, in itself, does not state a deprivation of adequate

medical care. I therefore recommend that this claim, too, be

dismissed. Similarly, Chambers has failed to state how the

denial of an MRI recommended by a physical therapist deprives him

of adequate medical care for a serious medical condition. 

Chambers has not even set forth what part of his body requires an

MRI or how that information is necessary to the provision of

adequate medical care. Accordingly, I recommend that the claims

alleging denial of access to medical specialists and an MRI be

dismissed.

2. Equal Protection

Chambers alleges that defendants violated his Fourteenth

Amendment right to the Equal Protection of the laws when they

denied him services based on his disability. The Equal

Protection Clause requires states to treat similarly situated

persons alike. Plyler v. Doe, 457 U.S. 202, 216 (1982); Toledo

v. Sanchez, 454 F.3d 24, 33 (1st Cir. 2006), cert. denied, Univ.

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 20 of 42
21

of P.R. v. Toledo, ___ U.S. ___, 127 S. Ct. 1826 (2007). 

However, the disabled are not a suspect class for equal

protection purposes. Toledo, 454 F.3d at 33 (citing City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). As

such, “if special accommodations for the disabled are to be

required, they have to come from positive law and not through the

Equal Protection Clause.” Id. (quoting Bd. of Trs. of Univ. of

Ala. v. Garrett, 531 U.S. 356, (2001). The ADA, which is such a

positive law, requires states to provide special accommodations

for the disabled, and is therefore more protective of the rights

of the disabled than is the Equal Protection Clause. Tennessee

v. Lane, 541 U.S. 509, 549 (2004). I find that, because Chambers

has failed to state any facts that allege his membership in a

protected class of persons, that he was treated differently than

other similarly situated persons, or that there was no rational

basis for the treatment he received, that Chambers has not

alleged any claims under the Equal Protection Clause. I

therefore recommend that any intended equal protection claim be

dismissed from this action.

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 21 of 42
22

3. Denial of Free Medical Care

Chambers alleges that the prison has no right to charge him

for medical appointments if his inmate account does not have

money in it. Chambers offers no authority for his position,

except to imply that he is somehow being punished for seeking

medical care. With the exception of his claim related to

eyeglasses, which has been addressed above, Chambers has not

alleged that he has been denied any requested medical

appointments or care due to his lack of funds. 

While the prison does have a constitutional obligation to

provide medical care, there is no constitutional right to free

medical care. See City of Revere v. Mass. Gen. Hosp., 463 U.S.

239, 245 (1983); Reynolds v. Wagner, 128 F.3d 166, 174 (3d Cir.

1997) (prisoner co-payment plan does not violate the Eighth

Amendment); Martin v. DeBruyn, 880 F. Supp. 610, 615 (N.D. Ind.

1995), aff’d., 116 F.3d 1482 (7th Cir. 1997) (Eighth Amendment

guarantees only that inmates receive necessary medical care; it

does not guarantee free medical care). Because Chambers is not

constitutionally entitled to free medical care, his complaint

regarding medical expenses fails to state a claim upon which 

Case 1:06-cv-00449-JL Document 19 Filed 05/30/07 Page 22 of 42
23

relief may be granted under 42 U.S.C. § 1983. Accordingly, I

recommend dismissal of this claim.

B. ADA/Rehabilitation Act

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. §

12132.

Pursuant to the plain language of Title II, a plaintiff

must establish: (1) that he is a qualified individual

with a disability; (2) that he was either excluded from

participation in or denied the benefits of some public

entity’s services, programs, or activities or was

otherwise discriminated against; and (3) that such

exclusion, denial of benefits, or discrimination was by

reason of the plaintiff’s disability.

Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000). 

Title II of the ADA applies to inmates in correctional

facilities. See Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206,

209-10 (1998). “[P]risons provide inmates with many recreational

activities, . . . services, and educational and vocational

programs, all of which at least theoretically benefit the

prisoners (and any of which disabled prisoners could be excluded 

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24

from participation in.)” Id. at 210 (internal citations

omitted). 

Section 504 of the Rehabilitation Act of 1973 provides in

relevant part:

No otherwise qualified individual with a 

disability . . . shall, solely by reason of her or

his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to 

discrimination under any program or activity 

receiving federal financial assistance . . . 

29 U.S.C. § 794(a). While the Supreme Court has not explicitly

held that the Rehabilitation Act applies to prisons, other

federal courts have reached that conclusion. See, e.g., Stanley

v. Litscher, 213 F.3d 340, 343 (7th Cir. 2000) (citing cases). 

To state a claim under § 504, Chambers must allege the following

elements: (1) that he is disabled; (2) that he sought services

from a federally funded entity; (3) that he was “otherwise

qualified” to receive those services from a federally funded

entity; and (4) that he was denied those services “solely by

reason of his . . . disability.” Lesley v. Chie, 250 F.3d 47,

52-53 (1st Cir. 2001). The same standards apply to claims made

under the ADA and claims made under the Rehabilitation Act. 

Quiles-Quiles v. Henderson, 439 F.3d 1, 5 (1st Cir. 2006) (citing

Calero-Cerezo v. DOJ, 355 F.3d 6, 11 n.1 (1st Cir. 2004)). 

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Accordingly, I will not engage in separate analyses for each

statute, but will undertake an analysis under the ADA and apply

my findings to the Rehabilitation Act claims.

1. Passes

Chambers alleges that by virtue of the fact that he has one

arm, as well as other medical conditions, he is a disabled

“qualified individual” under the ADA. As such, Chambers alleges

that he was denied the benefit of a “no twisting and turning”

pass, the assistance of a nurse in removing his lidocaine

patches, and an elevator pass by McKenna and Eppolito and slow

movement and cell chair passes by Baker. As such, Chambers

attempts to allege that, as a result of his disabling conditions,

he has been denied benefits, services, or programs to which he is

entitled under the ADA and the Rehabilitation Act. I find that

Chambers’ allegations that he was not assisted on one or two

isolated occasions with removing his lidocaine patches, and that

he was made to twist and turn on those occasions are insufficient

to state a claim for a denial of benefits or services. Also

insufficient is Chambers’ claim that he is entitled to be woken

up to receive pain medication. Even accepting Chambers’

allegations as true, he alleges a de minimus infliction of pain,

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26

and not a systemic denial of comfort measures made necessary by

his disability that were removed as a result of his disability. 

Chambers alleges that the denial of an elevator pass, chair

pass and slow movement pass violated the ADA and the

Rehabilitation Act, as those denials caused him significant

discomfort related to his disability. While the facts alleged,

in terms of the precise reasons for denial of the passes and the

specific qualifying disabilities that were offended by the

denials are scant, I find that a liberal reading of the complaint

alleges a denial of reasonable accommodations when he was not

given elevator, cell chair, and slow movement passes. I,

therefore, will direct service of these claims, raised pursuant

to the ADA and Rehabilitation Act, against McKenna, Eppolito, and

Baker in the Simultaneous Order.

2. Pain Medications

To the extent that Chambers intends to raise a claim under

the ADA or Rehabilitation Act regarding the failure of prison

officials to wake him for his pain medications, he has failed to

do so. While waking an inmate for necessary medications may be a

reasonable accommodation for an inmate who cannot wake himself as

a result of his disability, Chambers has not alleged that his

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failure to wake up, and his need to be woken by prison officials,

was caused by his disability.

II. Conspiracy Claim

Chambers alleges that defendants Baker, McKenna and Eppolito

engaged in a conspiracy to deprive him of his pain medications. 

A conspiracy to commit a civil rights violation is actionable

under 42 U.S.C. § 1985(3) which states, in relevant part:

If two or more persons in any State or Territory 

conspire . . . for the purpose of depriving, either 

directly or indirectly, any person or class of persons

of the equal protection of the laws, or of equal 

privileges and immunities under the laws; or for the 

purpose of preventing or hindering the constituted 

authorities of any State or Territory from giving or 

securing to all persons within such State or Territory 

the equal protection of the laws; . . . in any case of 

conspiracy set forth in this section, if one or more 

persons engaged therein do, or cause to be done, any 

act in furtherance of the object of such conspiracy, 

whereby another is injured in his person or property, or

deprived of having and exercising any right or 

privilege of a citizen of the United States, the party 

so injured or deprived may have an action for the 

recovery of damages occasioned by such injury or 

deprivation, against any one or more of the 

conspirators.

To state a claim under § 1985(3), the plaintiff must allege that

the conspiratorial conduct complained of was motivated by some

“racial, or perhaps otherwise class-based, invidiously

discriminatory animus.’” Aulson, 83 F.3d at 3 (quoting Griffin

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v. Breckenridge, 403 U.S. 88, 91 (1971)). As previously

discussed, Chambers has not alleged that he is a member of any

constitutionally protected class of persons or that he was the

object of any kind of constitutionally prohibited invidious

discrimination. Accordingly, Chambers has not alleged a

conspiracy claim under § 1985(3), and I recommend that the

conspiracy claim be dismissed from this action.

III. Retaliation/Right to Petition the Government for a Redress 

of Grievances

The First Amendment’s guarantee of a right to petition the

government for a redress of grievances has been characterized as

“among the most precious of the liberties safeguarded by the Bill

of Rights.” United Mine Workers v. Ill. State Bar Ass’n, 389

U.S. 217, 222 (1967). The right of petition, in the prison

context, means that inmates must be “permit[ted] free and

uninhibited access . . . to both administrative and judicial

forums for the purpose of seeking redress of grievances against

state officers.” Sostre v. McGinnis, 442 F.2d 178, 200 (2d Cir.

1971) (en banc), cert. denied, Sostre v. Oswald, 404 U.S. 1049

and Oswald v. Sostre, 405 U.S. 978 (1972) (overruled on other

grounds by Davidson v. Scully, 114 F.3d 12, 15 (2d Cir. 1999). 

“[I]ntentional obstruction of a prisoner’s right to seek redress

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of grievances is precisely the sort of oppression that . . .

section 1983 [is] intended to remedy.” Franco v. Kelly, 854 F.2d

584, 589 (2d Cir. 1988) (internal quotations omitted). 

A prisoner’s right to petition the government for a redress

of grievances under the First Amendment precludes prison

officials from retaliating against a prisoner by punishing a

prisoner for actions he takes in the exercise of those rights. 

See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). While

prison officials may make policy that is reasonably related to

legitimate penological interests, even at the expense of certain

constitutional rights, Turner v. Safley, 482 U.S. 78, 89-90

(1987), “actions otherwise supportable lose their legitimacy if

designed to punish or deter an exercise of constitutional

freedoms.” Ferranti v. Moran, 618 F.2d 888, 892 n.4 (1st Cir.

1980) (citing McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979));

see also Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993), cert.

denied, 512 U.S. 1209 (1994) (prison officials cannot lawfully

impose a disciplinary sanction against a prisoner in retaliation

for the prisoner’s exercise of a constitutional right). 

Retaliation can be inferred from the chronology of events. See

Ferranti, 618 F.2d at 892 (chronology of events provided support

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for inference of retaliation); McDonald, 610 F.2d at 18 (same);

see also Oropallo v. Parrish, No. 93-1953, 1994 WL 168519, at *4

(1st Cir. May 5, 1994) (explaining how the challenged event must

follow the exercise of the constitutional right).

Chambers alleges that shortly after filing administrative

complaints and grievances against Baker, McKenna and Eppolito

complaining about their administration of his medical care, the

defendants acted to cut his pain medication in half, or to

eliminate some of his medication altogether. Chambers claims

that there was no change in his need for medication, and that the

change occurred only because he filed complaints against these

defendants. Accordingly, while the medical staff may

legitimately be able to make decisions for Chambers’ care

pursuant to NHDOC policy, Chambers has alleged that the decision

to reduce his pain medications was not based on any medical

consideration, but was done in retaliation for grievances

Chambers filed. For purposes of preliminary review, Chambers has

alleged the minimum facts necessary to state a § 1983 claim

against Baker, McKenna and Eppolito for retaliation in response

to Chambers’ exercise of his First Amendment right to petition

the government for a redress of grievances, and I will direct, in

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the Simultaneous Order, that this claim be served upon Baker,

McKenna and Eppolito.

IV. Denial of Kosher Diet

A. Section 1983 Claims

1. First Amendment

The First Amendment’s religion clauses provide that

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.” U.S. Const.

amend. I. The first clause, the Establishment Clause, mandates

the separation of church and state. The second clause, the Free

Exercise Clause, requires that government respect and not

interfere with the religious beliefs and practices of those

protected by the United States Constitution. See Cutter v.

Wilkinson, 544 U.S. 709, 719 (2005).

A prisoner “retains those First Amendment rights that are

not inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system.” 

Pell v. Procunier, 417 U.S. 817, 822 (1974); see also Bell v.

Wolfish, 441 U.S. 520, 545 (1979) (“prisoners do not forfeit all

constitutional protections by reason of their conviction and

confinement in prison.”). The retained rights include the right

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to the free exercise of religion. Cruz v. Beto, 405 U.S. 319,

322 (1972). Prisons must provide all inmates reasonable

opportunities to exercise their religious freedom. Id. at 322,

n.2. When a prisoner raises a Free Exercise Clause claim, the

prisoner must “establish that a challenged policy restricts the

inmate’s free exercise of a sincerely held religious belief.” 

Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir. 1994); Barnett v.

Comm’r, N.H. Dep’t of Corr., No. Civ. 98-305-JD, 2000 WL 1499490

at *2 (D.N.H. Apr. 26, 2000).

The Supreme Court has held that a prisoner’s sincerely held

religious beliefs must yield, however, if contrary to prison

regulations that are “reasonably related to legitimate

penological interests.” Turner, 482 U.S. at 89; see O’Lone v.

Estate of Shabazz, 482 U.S. 342, 351-352 (1987) (finding that the

Constitution does not require the prison to sacrifice legitimate

penological objectives to satisfy an inmate’s desire to exercise

his religion so long as an inmate is not deprived of all forms of

religious exercise). A prison regulation must have a logical

connection to the legitimate governmental interests invoked to

justify it. Turner, 482 U.S. at 89-90. That connection may not

be “so remote as to render the policy arbitrary or irrational.” 

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Id. Prisons must provide all inmates reasonable opportunities to

exercise their religious freedom. See Cruz, 405 U.S. at 322 n.2. 

Free exercise claims brought by prisoners are “judged under a

‘reasonableness’ test less restrictive than that ordinarily

applied to alleged infringements of fundamental constitutional

rights.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003)

(quoting O’Lone, 482 U.S. at 349); see also Shaw v. Murphy, 532

U.S. 223, 227-229 (2001). 

Here, Chambers alleges that defendant Hoyt has denied him a

kosher diet, which his religion requires. Although the prison

had previously provided him with a kosher diet, Chambers claims

that Hoyt terminated his kosher meals without any due process. 

“[C]ourts have generally found that to deny prison inmates the

provision of food that satisfies the dictates of their faith does

unconstitutionally burden their free exercise rights.” McEachin

v. McGuinnis, 357 F.3d 197, 203 (2d Cir. 2004) (citing cases). 

These allegations suffice to state a claim upon which relief

might be granted against Hoyt.

2. Fourteenth Amendment

The Due Process Clause of the Fourteenth Amendment provides

that the State shall not “deprive any person of life, liberty, or

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property, without due process of law.” U.S. Const. amend. XIV. 

Because the First Amendment gives rise to a liberty interest in

practicing one’s religion, before the State can burden the

practice of his faith, Chambers is entitled to due process. See

McEachin, 357 F.3d at 203. As Chambers alleges that his kosher

diet was taken away without any due process, I find that he has

stated a claim against Hoyt alleging a violation of the

Fourteenth Amendment’s Due Process Clause. In my Simultaneous

Order, I will direct that the First and Fourteenth Amendment

claims related to the denial of Chambers’ kosher diet be served

on defendant Hoyt.

B. Religious Land Use and Institutionalized Persons 

Act Claim

Chambers’ allegation that he was denied a kosher diet can

also be construed as a claim brought under the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”) which, in certain

circumstances, prohibits government infringement on the practice

of religion. See Mayweathers v. Newland, 314 F.3d 1062, 1065

(9th Cir. 2002), cert. denied, Alameida v. Mayweathers, 540 U.S.

815 (2003). Under the RLUIPA, governmental imposition of a

“substantial burden on the religious exercise” of a prisoner is

prohibited, unless the burden “(1) is in furtherance of a

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compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling governmental

interest.” 42 U.S.C. § 2000cc-1(a). The phrase “religious

exercise” is to be construed liberally to include belief and

professing of one’s faith as well as the performance of physical

acts, such as assembling with others to worship or participating

in sacramental use of bread and wine. See Cutter, 544 U.S. at

720. 

Construed liberally, the complaint alleges that Hoyt has

substantially burdened Chambers’ religious practice by denying

him a kosher diet and thus preventing him from observing his

faith. If true, these allegations may state a cognizable RLUIPA

claim against Hoyt. Accordingly, in the Simultaneous Order, I

will direct that the RLUIPA claim be served against Hoyt.

V. Video Game Claim

Chambers alleges that denying him access to a one-handed

video game violated the ADA’s “reasonable accommodation”

requirement. Essentially, he argues that if two-handed inmates

have a video game available for purchase, that it is a violation

of the ADA to deny him the opportunity to purchase a video game

for one-handed persons.

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As previously discussed, to state an ADA claim, a prison

inmate must allege that he: (1) is a handicapped person, (2) 

that he is otherwise qualified, and that prison officials'

actions either (3) excluded his participation in or denied him

the benefits of a service, program or activity, or (4) otherwise

subjected him to discrimination on the basis of his physical

handicap. 42 U.S.C. § 12132. Here, while Chambers has alleged

that he is a handicapped person with a qualifying disability, and

that he has been prevented from playing video games at the

prison, he has failed to allege either that he was excluded from

a prison program, service, or activity, or that the denial of a

video game was based on his disability.

While access to the prison canteen is a service provided by

the prison to inmates generally, it does not necessarily follow

that access to each and every item in the canteen is a service,

activity or program provided by the prison. Inmates without

money are not able to purchase items from the canteen. Inmates

receiving religious diets are not allowed to purchase food items

from the canteen that do not comport with that diet. Inmates can

only purchase items that are in stock. Chambers has not alleged

that he was denied access to the canteen altogether due to his

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37

disability. Chambers offers no support for his assumption that

the prison is obligated to make each specific item available to

every inmate who wants to purchase it. Accordingly, the prison

cannot be said to have provided video games for purchase as a

service of the prison. 

Even if, by contorting the definition of the prison’s

recreational activities, one could state an arguable claim that

denial of access to a video game is a denial of a prisonsponsored activity, I find that Chambers has failed to allege

that the decision to deny him a one-handed video game was based

on his disability. Chambers does not allege that the prison

refused to allow him to purchase or use a two-handed video game

because he only has one hand. Instead, as Chambers admits, the

denial of a video game was based on security concerns. Chambers

was advised that the one-handed video game he sought to purchase

from an outside source presented an unacceptable security risk

because the cover, or casing, of the game was opaque and did not

provide visual access to its contents. Chambers argues that the

canteen video games are opaque. 

The prison, however, might have security concerns regarding

accepting an opaque container from an outside source that they do

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not have when dealing with containers that are provided to

inmates within the prison. Even if the prison officials’ have

established a double-standard for the canteen and outside video

game’s containers, the decision is still one based on security

concerns, and not on the fact that Chambers is disabled. See

Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 443

(S.D.N.Y. 2004) (prisoner who does not allege that denial of a

reasonable accommodation was based on his disability cannot

sustain an ADA claim). Security concerns, as special concerns of

prisons, are relevant factors to consider in determining the

feasibility of an accommodation. Crawford v. Ind. Dep’t of

Corrs., 115 F.3d 481, 487 (7th Cir. 1997) (rev’d on other grounds

by Erickson v. Bd. of Governors of State Colleges & Univs. for

Ne. Ill. Univ., 207 F.3d 945, 948 (7th Cir. 2000)) (citing

Turner, 482 U.S. at 84-91, for the proposition that the

circumstances that exist in a prison setting permit a degree of

discrimination that would not be tolerated in a free

environment).

Finally, I would be remiss if I failed to note that, while I

can find no precise authority on point, the denial of access to a

video game while one is incarcerated is hardly the sort of

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39

deprivation that either the federal constitution or the ADA is

designed to protect. In fact, the legislative history of the

Prison Litigation Reform Act, enacted in 1996, in part to control

a perceived abundance of burdensome frivolous lawsuits being

filed by prisoners in federal courts, includes, as an oft-cited

example of a frivolous action by an inmate, a lawsuit filed for

the denial of the use of a Gameboy video game. See, e.g.,

Robbins v. Chronister, 402 F.3d 1047, 1053 (10th Cir. 2005)

(citing 141 Cong. Rec. S14408-01 (daily ed. Sept. 27, 1995) 

(statement of Sen. Kyl)); Royal v. Kautzky, 375 F.3d 720, 730

(8th Cir. 2004), cert. denied, Royal v. Reid, 544 U.S. 1061

(2005) (same); Cruz v. Jordan, 80 F. Supp. 2d 109, 114 (S.D.N.Y.

1999) (same). For all of these reasons, I recommend that

Chambers’ claim relating to the denial of a video game be

dismissed.

VI. Choice of Defendants

A. Supervisory Liability

“Supervisory liability under § 1983 cannot be predicated on

a respondeat theory, but only on the basis of the supervisor’s

own acts or omissions.” Aponte Matos v. Toledo Davila, 135 F.3d

182, 192 (1st Cir. 1998) (internal citations omitted). A

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40

supervisor must be either “a primary actor involved in, or a

prime mover behind, the underlying violation.” Camilo-Robles v.

Zapata, 175 F.3d 41, 43-44 (1st Cir. 1999). There must be “an

affirmative link, whether through direct participation or through

conduct that amounts to condonation or tacit authorization” to

the violation alleged. Id. at 44. 

Chambers has alleged that defendants Blaisdell, McLeod,

Wrenn, Cattell, and Crompton have all been notified of the

constitutional violations alleged here, and have failed to remedy

the violations. Chambers has further alleged that these

individuals are the supervisory prison officials with the

authority to effect such a remedy. Accordingly, I will direct

service against these individuals in their supervisory

capacities.

B. Defendants Cox and Crompton

The only allegations against defendant Cox have to do with

Chambers’ appeal of the assessment of fees for sleeping through

his medication dispensations. The only allegations against

defendant Crompton have to do with the denial of a video game. 

Because I recommend that those claims be dismissed, I recommend

that Cox and Crompton be dismissed as defendants to this action.

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Conclusion

For the foregoing reasons, I recommend that the ADA and

Rehabilitation Act claims alleging inadequate pain medication,

the claims alleging denial of medical specialists, medical

testing, failure to wake Chambers for medication, and denial of a

video game, and the § 1983 claim alleging denial of free medical

care be dismissed from this action. I also recommend that

defendants Cox and Crompton be dismissed from this action. I

direct, in my Simultaneous Order, that the § 1983 claim alleging

an Eighth Amendment violation for denial of pain medication

proceed against defendants Blaisdell, McLeod, Baker, Wrenn, and

Eppolito, the § 1983 Eighth Amendment inadequate vision care

claims proceed against defendants Thyng, Smiley, Cattell, and

Wrenn, the § 1983 kosher diet, free exercise, and due process

claims proceed against defendant Hoyt, and the ADA and

Rehabilitation Act claims for the denial of accommodations in the

form of passes proceed against defendants McKenna, Eppolito, and

Baker.

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

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42

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: May 30, 2007

cc: Randolph L. Chambers, pro se

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