1Simultaneously with this Report and Recommendation, I have

issued an Order directing service of the complaint on the named

defendants.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William Edmondson

v. Civil No. 05-cv-445-JD

Stephen J. Curry, Commissioner,

New Hampshire Department of

Corrections, et al.

REPORT AND RECOMMENDATION

Before the Court is William Edmondson’s motion for an

emergency preliminary injunction (document no. 7) and the

Defendant’s objection (document no. 14). This matter was

referred to me to review and to prepare a report and

recommendation (document no. 8).1 The Court held an evidentiary

hearing on February 23 and 24, 2006. For the reasons discussed

herein, I recommend that the District Judge deny Edmondson’s

motion for preliminary relief.

At the preliminary injunction hearing, the Court heard

testimony from the following witnesses: Plaintiff William

Edmondson, Harold McAllister, a New Hampshire State Prison

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 1 of 20
2

(“NHSP”) social worker and inmate counselor, Stephen Nelson, a

corrections counselor and case manager at the NHSP, Robert

McGrath, a corrections counsel and case manager at the NHSP,

Judith Mann, a Sex Offender Program (“SOP”) therapist, Ruth

Kevghas, an SOP therapist, Gary Fecteau, an inmate facilitator in

the SOP, Edward Redmond, a social worker and Edmondson’s

therapist at NHSP, Kimberly Marsh, an SOP therapist, Norman

Smith, an SOP therapist and administrator, and Keith Saunders, a

corrections counselor and case manager at the SOP. After

considering the testimony of all the witnesses, I discuss the

facts relevant to the request for preliminary relief below.

Background

Edmondson was accepted into the SOP at the NHSP in November

of 2003. On December 1, 2003, Edmondson signed a Program

Contract, agreeing to the rules and regulations governing the

SOP. See Def. Ex. F. As part of the contract, Edmondson agreed

to, among other things: 

[B]e completely open and honest and assume full 

responsibility for my offenses and my behavior, [and] 

not disclose any information regarding another client to 

anyone outside this program unless an appropriate 

authority requires the information in an emergency. 

This includes not revealing the identity of any group 

member.

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 2 of 20
3

Id. Over the course of Edmondson’s first fifteen months in the

program, he successfully completed most of the SOP course work. 

In early March of 2005, Edmondson was subpoenaed to testify in a

lawsuit filed in this Court by another inmate, Randy Duquette

(“Duquette lawsuit”). The Duquette lawsuit challenged the SOP’s

practice of including religious and spiritual materials in the

program as violative of the Free Establishment Clause of the

First Amendment. Edmondson was called to testify to the

existence of religious and spiritual content in the SOP program

materials. Edmondson alleges that as a result of his testimony

in the March 2005 hearing, and another hearing in the Duquette

lawsuit, the SOP staff members and inmate facilitators engaged in

a practice of harassment against him, including verbal bullying,

sanctions within the program, and ultimately termination from the

SOP.

Edmondson also testified that at the end of April 2005,

another inmate asked him to look into a darkened room to

determine whether or not anything suspicious was occurring

inside. In the room, Edmondson saw two inmates in the SOP

sitting very close to one another. Edmondson suspected that the

two inmates were engaging in sexual activity. Shortly

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 3 of 20
4

thereafter, a non-SOP inmate who is a friend of Edmondson’s,

Steven Roy, told Edmondson that the same two inmates had engaged

in sexual contact in the furniture shop. Edmondson testified at

the hearing that he was unsure of what to do with this

information, as a failure to report a breach of program rules,

such as engaging in sexual activity with another inmate, is

itself a breach of program rules. Edmondson consulted both an

inmate facilitator and a member of his inmate support team as to

what course of action he should take. Gary Fecteau, an inmate

facilitator in the SOP, testified that Edmondson had acted

appropriately in seeking out these members of the therapeutic

community for guidance as to how to act in a difficult situation. 

He was advised by the inmates to report the incident to SOP staff

and he did so. According to Edmondson, these two inmates were

the only people he told about what he had seen. SOP staff

members who testified at the hearing, however, testified that

they had heard the information from other inmates who reported

that Edmondson was the source of the information. 

Inmates participating in the SOP are prohibited from

engaging in sexual contact with other inmates. If the inmates

that Edmondson observed were found to have engaged in sexual

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 4 of 20
5

contact, that would be a major rule violation that could cause

them to be terminated from the SOP. For this reason, the SOP

staff testified that they took Edmondson’s allegations seriously

and that they thoroughly investigated the incident. They did

this by first determining whether the suspected inmates’

schedules allowed for them both to be in the furniture shop at

the same time, which it did not. Additionally, both of the

suspected inmates were given polygraph examinations, which they

“passed,” indicating to the SOP staff that they had not engaged

in the conduct of which they were accused. 

On May 3, 2005, Edmondson approached an inmate in the chow

hall who had just been talking with one of the inmates suspected

of engaging in sexual contact, and asked if the suspected inmate

had passed the polygraph. The inmate who Edmondson approached

reported to SOP staff that Edmondson had raised this issue in the

chow hall outside of the SOP unit, and that Edmondson was loud

enough to be overheard by other inmates. Edmondson subsequently

admitted to staff that he discussed this matter outside of the

SOP.

According to the testimony of Gary Fecteau, which I find

credible, during the several weeks following Edmondson’s sexual

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 5 of 20
6

contact accusations, tensions began to mount in the SOP. In what

Fecteau referred to as the “inmate rumor mill,” there was much

discussion inside and outside of the SOP that the Duquette

lawsuit was going to close down the SOP. Some inmates also began

to believe that as a result, all of the inmates in the program

were going to be forced to serve their maximum sentences. Over

time, the rumors became specific and believable, and Edmondson

was commonly identified as being not only part of the problem due

to his participation in the Duquette lawsuit, but as someone who

could not be trusted with information, due to his reputation for

rumor mongering and violating confidentiality. Whether or not

Edmondson was actually engaged in rumor mongering is a matter of

dispute. Edmondson insists that he was not, while SOP staff

members identified him as a source of mistrust and distress on

the part of many of the SOP inmates. 

Fecteau and SOP staff members testified that the mistrust of

Edmondson and the rumors circulating in the SOP were interfering

with the treatment the SOP inmates were receiving. Accordingly,

in response to the SOP community’s growing concerns, the SOP

staff held a Town Meeting. At that town meeting, inmates were

invited to express how Edmondson’s actions had made them feel. 

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 6 of 20
7

SOP therapist Judy Mann testified that all of the inmates’

comments to Edmondson were made in the “I mode” in that the

inmates described only their own feelings. Mann and other SOP

staff members described the Town Meeting as uncomfortable for

Edmondson, but not abusive in any way. Fecteau testified that he

was sitting beside Edmondson at the meeting, and that it was an

intensive hour and forty-five minutes of inmates confronting

Edmondson with what they perceived to be his inappropriate or

maladaptive behavior. Fecteau testified that while the meeting

was conducted in a constructive manner, that it was a very

difficult experience for Edmondson. Fecteau testified that he

spent two hours after the meeting working with Edmondson to help

him recover from the meeting which Edmondson has described as a

“verbal bashing.” Edmondson continued to try to work through his

anger at being subjected to the inmates’ wrath at the Town

Meeting in his treatment groups during the next several weeks.

At the end of June 2005, Edmondson received a “pull-up,”

which is an unofficial and inmate-initiated disciplinary action

that occurs within the SOP to hold inmates accountable for their

behaviors. The pull-up concerned Edmondson’s flicking one of his

cellmates on the chest, in the nipple area, in order to inflict

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 7 of 20
2At the hearing, the SOP staff members testified that they

treated this incident as though Edmondson had spread false rumors

8

pain on that inmate because he wanted the inmate to get out of

his way. Edmondson’s treatment group took the pull-up very

seriously because of the aggressive nature of the action and

because it involved a sexual area of his cellmate’s body. 

Edmondson was reluctant to take full responsibility for his

actions, blaming the pull-up on the fact that he had given

another inmate a pull-up earlier that day, and that he and his

cellmates had an agreement not to give each other pull-ups for

minor matters, so that this never should have arisen, and

generally minimizing the incident.

On July 1, 2005, Edmondson was “placed on contract.” Being

placed on contract is essentially being given notice, in writing,

that you have violated serious rules of the SOP and that any

further violation of program rules, or the instructions in the

contract will result in termination from the program. The

contract document indicated the following reasons for Edmondson

being placed on contract:

1. Aggressive behaviors for flicking his cellmate’s nipple

to inflict pain, spreading a “malicious rumor about two

community members being caught in mutual masturbation 

which could have resulted in them losing their 

program,”2 and direct and indirect threats in group to 

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 8 of 20
about the inmates involved. Edmondson testified that while he

understood the inmates in question had been officially

exonerated, he does not doubt that the sexual contact occurred,

that he spoke with two inmates to get guidance on what to do, and

that he reported the incident to staff. Edmondson denies telling

any other inmate about the incident. While I find that the

investigation conducted by the SOP staff does not disprove

Edmondson’s version of events, Edmondson’s truthfulness or lack

thereof on this matter is not germaine to my recommendation on

this motion, as I find that the termination was not based on

having made the accusation, but on Edmondson’s violation of the

SOP confidentiality rules.

3Edmondson denied threatening the SOP staff in this manner. 

Because the determination of this issue does not have any bearing

on my recommendation on the motion at issue, I will not discuss

these matters further.

9

report his therapist’s behavior to a federal judge if 

he didn’t get his way;3

2. Failure to accept responsibility for his behavior 

by victim stancing for blaming his behavior on his 

past abuse history, his ill health or other 

community members; and

3. Holding resentments and then retaliating against 

inmates Edmondson perceived to have wronged him in 

the past.

When Edmondson was placed on contract, he had already completed

all of the work at the SOP program except preparing his

maintenance contract for approval. A maintenance contract is a

contract an SOP graduate lives by outside of the program to

prevent relapse and maladaptive behaviors from occurring. 

On July 19, 2005, Edmondson, was overheard telling a former

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 9 of 20
4This incident was not related to the April incident in

which Edmondson reported sexual contact between two inmates.

10

SOP inmate that two inmates in the SOP had been terminated from

the program for engaging in sexual conduct.4 That conversation

occurred while Edmondson was walking to the chow hall. The SOP

staff met and determined that Edmondson had committed another

violation of the SOP’s confidentiality rules. In both the

incident where Edmondson witnessed two inmates having sexual

contact and in the incident where he told another inmate that two

inmates had been terminated, he was outside of the SOP unit where

he could be overheard, and was therefore in violation of SOP

confidentiality rules. The testimony at the hearing made clear

that there is some ambiguity in the confidentiality rules. There

is no question in my mind, however, that Edmondson understood

that discussing any confidential matters with anyone outside of

the SOP unit where he could be overheard violated the SOP’s

rules.

Edmondson’s written notice of termination cited the

following reasons for his termination: repeated breaches of

confidentiality, that other SOP community members felt

mistrustful of Edmondson and his ability to maintain their

confidences, and that his behavior therefore negatively impacted

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 10 of 20
11

the community, that he constantly threatened legal action when

held accountable for his behavior, and that he created dissension

between staff and community members for his own self-interest. 

For all of these reasons, Edmondson was terminated from the

program. Edmondson was given permission to reapply to the

program after a period of six months passed.

In November of 2005, Edmondson was eligible to be considered

for parole. He was denied parole because he had not completed

the SOP. He was told that he could reapply for parole after he

completed the program. SOP therapist and administrator Norman

Smith testified at the hearing that two to three previously

terminated inmates are readmitted to the SOP each quarter, and

that while Edmondson had reapplied, he was currently in either

the twenties or thirties on the waiting list. Smith acknowledged

that Edmondson was likely to have to wait at least two and a half

years for readmission to the program, and that he could possibly

spend five years or more on the waiting list before being

readmitted.

Edmondson alleges that the treatment he received was made in

retaliation for his involvement in the Duquette lawsuit which was

critical of the SOP and resulted in program changes in the SOP. 

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 11 of 20
12

The SOP staff responded that the in-program consequences to which

Edmondson was subjected, as well as the contract he was placed on

and ultimately his termination from the SOP, were based on his

behaviors in the program and denied that any actions were taken

against Edmondson in retaliation for his participation in the

Duquette lawsuit. 

Edmondson’s therapist, Edward Redmond, testified that

Edmondson sometimes misperceived reality, that he viewed the

world as a place that victimized him, that he is a very

suspicious person in that he believes he is perceived and talked

about by others in a negative way, and that his psychiatric

diagnosis causes him to mistrust others.

Discussion

A district court may grant a plaintiff’s request for a

preliminary injunction if the plaintiff satisfies a four-part

test: (1) the plaintiff is likely to succeed on the merits of the

action; (2) the plaintiff will suffer irreparable harm if the

injunction is not granted; (3) the injury to the plaintiff

outweighs any harm which granting the injunction would inflict on

the defendant; and (4) the public interest will not be adversely

affected by the granting of the injunction. See Langlois v.

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 12 of 20
13

Abington Hous. Auth., 207 F.3d 43, 47 (1st Cir. 2000). A party

seeking injunctive relief must independently satisfy each of the

four factors. See Auburn News Co. v. Providence Journal Co., 659

F.2d 273, 277 (1st Cir. 1981).

Edmondson alleges that he was terminated from the SOP in

retaliation for his assertion of his First Amendment right to not

be forced to exercise any particular religious practice and his

participation in the Duquette lawsuit. Edmondson seeks an order

forbidding prison staff from retaliating against the plaintiff in

any way, including by discussing this litigation with anyone

other than their counsel, and an order directing the SOP staff to

immediately deem Edmondson “graduated” from the SOP program, to

provide him with documentation of his completion of the SOP

sufficient to satisfy the parole board, and, if necessary, to

provide him one-on-one counseling to help him finish his

maintenance contract.

I. Likelihood of Success on the Merits

A. Free Establishment Claim

The Establishment Clause of the First Amendment to the

United States Constitution prohibits the government from coercing

anyone to support or participate in religion or its exercise. 

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 13 of 20
14

Lee v. Weisman, 505 U.S. 577, 587 (1992). The provisions of the

First Amendment are made applicable to the states through the

Fourteenth Amendment. 

[T]he type of coercion that violates the Establishment

Clause need not involve either the forcible subjection

of a person to religious exercises or the conditioning

of relief from punishment on attendance at church

services. . . . Coercion is also impermissible when it

takes the form of subtle coercive pressure that

interferes with an individual’s real choice about

whether to participate in worship or prayer. 

DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 412 (2d

Cir. 2001) (internal citations omitted); see Rutan v. Republican

Party of Ill., 497 U.S. 62, 77-78 (1990) (“What the First

Amendment precludes the government from commanding directly, it

also precludes the government from accomplishing indirectly.”). 

Conditioning parole eligibility or risk status on attendance at a

faith-based rehabilitation program constitutes coerced religious

involvement. Kerr v. Farrey, 95 F.3d 472, 480 (7th Cir. 1996). 

Edmondson has alleged that as a participant in the SOP, he

was forced to use materials that were religious or faith-based. 

Edmondson alleges that the SOP programming involved scriptural

quotes being posted in public places, a twelve-step program that

utilized the idea of a “higher power,” and prayer. Edmondson

further alleges that his participation in and completion of the

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 14 of 20
15

SOP is essential to his being granted parole. 

The SOP staff witnesses who testified at the hearing agreed

that a number of the materials to which Edmondson objects were in

use in the SOP program until June of 2004, a full six months

after Edmondson started the program. Further, the SOP staff

witnesses testified that while there was no public prayer as part

of the program, there was a daily quote posted by an inmate in a

public area, which was often a quote taken from a religious text. 

The daily quote is part of the SOP program and while the staff

claimed that the inmates chose what source to use as a quote,

they acknowledged that the quote was placed in a public area for

the use of all of the SOP participants. I find that there is no

substantive difference between posting a scriptural quote on a

public board and hanging a crucifix on the wall. Although the

SOP staff claim that inmates were responsible for choosing the

quotes from a religious text, I find that the state, through its

management of the SOP, is responsible for incorporating religion

into the SOP program by means of a public display visible to SOP

participants who do not choose to practice that religion. While

SOP staff have provided the participants with a warning when

materials contain references to religion or spirituality, and

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 15 of 20
16

have claimed to provide inmates with the option to forego such

programming, the posting in a public place of religious

quotations subjects SOP inmates to a particular religion as part

of a state-run program. Because these facts were admitted by the

SOP staff witnesses, I find that Edmondson has demonstrated that

he is likely to succeed on the merits of his Free Establishment

Clause claim. Since Edmondson is not currently in the SOP

program, however, and is therefore not currently having to use

program materials provided by the SOP, he has no current need for

an injunction with regard to his free exercise claim.

B. Retaliation Claim

“[A]n otherwise legitimate and constitutional government act

can become unconstitutional when an individual demonstrates that

it was undertaken in retaliation for his exercise of First

Amendment speech.” Anderson v. Davila, 125 F.3d 148, 161 (3d

Cir. 1997). A cognizable retaliation claim has three elements:

(1) the plaintiff engaged in protected conduct; (2) an adverse

action was taken against the plaintiff that would deter a person

of ordinary firmness from continuing to engage in that conduct;

and (3) there is a causal connection between the plaintiff’s

protected conduct and the defendant’s adverse action. See

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 16 of 20
17

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999); see

also Shabazz v. Cole, 69 F.Supp.2d 177, 197 (D.Mass. 1999)..

As to these three elements, the first is not in dispute, as

the Defendants stated in their objection to the preliminary

injunction: “Defendants do not dispute that plaintiff has a right

to voice his aversion to any alleged religious based

indoctrination, associate with a person litigating the issue or

testify about his experiences in the SOP.” Def. Obj. to Pltf.’s

Mot. for Emerg. Prel. Inj. ¶ 5. The Defendants further concede

that a significant adverse action was taken against the plaintiff

in that he was placed on contract and ultimately terminated from

the SOP. Id. Defendants argue, however, that the adverse action

was not taken to deter Edmondson’s participation in protected

conduct. They deny that there was any causal connection between

the plaintiff’s protected conduct and the adverse actions cited. 

Id. Defendants claim that Edmondson’s behavior in twice

violating confidentiality, acting in a physically aggressive

manner toward his cellmate, and other maladaptive behaviors that

the SOP staff members testified to were the reason for Edmondson

being placed on contract and terminated from the SOP. 

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 17 of 20
18

The SOP staff witnesses all testified unequivocally that

confidentiality is the cornerstone of the SOP program, which

relies on the inmates’ full disclosures about sexual offenses

they have committed or been the victim of, and other sensitive

information. It is crucial to the safety of the SOP participants

in the prison as well as to the success of the program, that the

confidentiality rules be scrupulously followed. Edmondson signed

a Program Contract on December 1, 2003 affirming that he would

not disclose any information regarding any SOP participant to

anyone outside of the program, and acknowledging his

understanding that violating the terms of the Program Contract

“will be grounds for termination from the program.” See Def. Ex.

F. Even Edmondson acknowledged in his own testimony that

confidentiality and trust were the most important components of

the SOP.

I find for purposes of making a recommendation on

preliminary injunctive relief, that the Defendants have

sufficiently demonstrated that Edmondson was placed on contract

and ultimately terminated as a result of his own behavior in

violating confidentiality and not due to his involvement in the

Duquette lawsuit and his opposition to religious indoctrination

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 18 of 20
19

in the SOP program. The testimony was, however, that Edmondson’s

involvement in the lawsuit and his conduct during that time

caused a lot of disruption to the SOP and that Edmondson was

found to be responsible for the disruption, and was held

accountable for his disruptive and maladaptive behaviors. 

While I believe that Edmondson testified truthfully at the

hearing, in that he genuinely perceived that he was being

retaliated against, attacked, and treated unfairly, I find that

his beliefs regarding the reasons he was terminated from the SOP

have more to do with what one witness called his “cognitive

distortions” than with the actual reasons for his termination.

Accordingly, I find that Edmondson has not demonstrated that he

is likely to prove his retaliation claim on its merits.

The sine qua non of a preliminary injunction is the

likelihood of success on the merits; the court may deny the

motion if the movant does not show that it will probably succeed

on its claims. See Weaver v. Henderson, 984 F.2d 11, 12 & n.3

(1st Cir. 1993). Because Edmondson has failed to demonstrate

that he is likely to meet with success on the merits of his

retaliation claim, I recommend that his request for a preliminary

injunction be denied.

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 19 of 20
20

Conclusion

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: April 3, 2006

cc: William Edmondson, pro se

Case 1:05-cv-00445-JD Document 21 Filed 04/03/06 Page 20 of 20