1Glenn has named the following defendants to this action:

the Hillsborough County Department of Corrections (“HCDC”), HCDC

Superintendent James O’Mara, HCDC Capt. David Dionne, HCDC Capt.

Dempsey, first name unknown (“FNU”), HCDC Capt. FNU Cusson, HCDC

Sgt. Todd Gordon, HCDC Lt. FNU Cunningham, HCDC Director of

Security Bonnie Ives, HCDC Classification Officer William

Raymond, HCDC Nurse Denise Hartley, HCDC Dr. FNU Harris, HCDC Dr.

FNU Ward, HCDC Lt. FNU Gidarokas, HCDC Lt. FNU Scurry, HCDC Lt.

FNU Martano, HCDC Health Services Administrator Barbara Condant,

HCDC Lt. FNU Robinson, HCDC Lt. FNU Hico, HCDC Officer FNU

Archambault, HCDC Officer Roger Copp, New Hampshire State Prison

(“NHSP”) Warden Bruce Cattell, NHSP employee Joel Dinsmore, NHSP

Sgt. FNU Smith, NHSP Sgt. FNU Morrin, NHSP Lt. FNU Moquin, New

Hampshire Attorney General Kelly Ayotte, Assistant New Hampshire

Attorney General Karen Huntress, Assistant New Hampshire Attorney

General Charles O’Keefe, and Assistant New Hampshire Attorney

General Mark Brown. Glenn has named all of the individual

defendants to this action in both their individual and official

capacities.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles Glenn

v. Civil No. 06-cv-99-PB

Hillsborough County Department

of Corrections, et al.1

REPORT AND RECOMMENDATION

Before the Court is Charles Glenn’s pro se and in forma

pauperis complaint brought pursuant to 42 U.S.C. § 1983. Glenn

alleges that while he was incarcerated at the Hillsborough County

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 1 of 28
2

Department of Corrections (“HCDC”) and the New Hampshire State

Prison (“NHSP”), he was subjected to conditions of confinement

that violated his federal constitutional rights. The matter is

before this Court for preliminary review to determine, among

other things, whether the complaint states any claim upon which

relief might be granted. See United States District Court for

the District of New Hampshire Local Rule (“LR”) 4.3(d)(2). As

discussed fully herein, I recommend the dismissal of the eleven

unexhausted claims, as identified herein, from this action. I

further recommend that Cunningham, Raymond, Gidarokas, Martano,

Robinson, Hico, Cattell, Dinsmore, Smith, Morrin, Moquin, Ayotte,

Huntress, O’Keefe, and Brown be dismissed as defendants to this

action. In an Order issued simultaneously with this Report and

Recommendation, I direct that the remaining claims be served

against defendants Cusson, Archambault, Dempsey, Ives, Dionne,

Gordon, Copp, Scurry, Ward, Harris, Condont, and O’Mara as

specified in that Order.

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

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 2 of 28
3

to prepare a report and recommendation advising the district

judge whether the action, 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

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 petitioner 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

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 3 of 28
4

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

Charles Glenn was detained pretrial at the HCDC on October

7, 2005 on a homicide charge. Upon his intake at the HCDC,

Glenn’s clothing was taken from him and he was placed in a bare

intake cell with only an apron-like garment, no linens, and no

hygiene products. He was also locked down twenty-four hours a

day and was not allowed to speak at all. These conditions

continued until October 11, 2005, when Glenn was transferred to

the Secure Housing Unit at the NHSP. He was immediately placed

on in-cell twenty-four hours per day confinement for twelve days. 

He stayed at the NHSP until November 24, 2005, when he was

transferred back to the HCDC. 

Glenn complains that during his time at the NHSP, his

incoming mail was searched, seized, read, and forwarded to the

Attorney General’s office to be used in the prosecution against

him. The NHSP officials justified this practice on the grounds

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5

that the NHSP investigations officers often conduct

investigations in conjunction with the Attorney General’s office

and that in this instance, they were investigating the possible

violation of a “no contact” bail order issued by the court

preventing Glenn from corresponding with a woman named Wanda

Diaz. Glenn alleges that there was no order prohibiting Diaz

from contacting Glenn, however, and that the warrantless seizure

of his mail was unreasonable and therefore unconstitutional. 

On November 24, 2005, Glenn was transferred back to the

HCDC. According to the documents submitted by Glenn, he was

transferred due to his behavior at the NHSP. 

Once back at the HCDC, Glenn was denied any out-of-cell

exercise time, was strip-searched one to three times daily during

November and December 2005, was videotaped during strip searches

and in the shower, was placed in a cold cell, was given out-ofcell time between 3:30 - 4:30 a.m., was forced to have the lights

on all night, was not given enough food to sustain his health and

body weight, was locked down for 23-24 hours per day due to his

homicide charge, rather than due to behavior at the HCDC, was

denied adequate mental health treatment as he was not given his

necessary medication to treat his post-traumatic stress disorder

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 5 of 28
2In his complaint Glenn makes reference to the prohibition

against cruel and unusual punishment in the Eighth Amendment. 

Because the events complained of occurred when Glenn was a

pretrial detainee housed at both the HCDC and the NHSP, the

constitutional obligation to provide him with constitutional

conditions of confinement 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); Elliott v. Cheshire County,

940 F.2d 7, 10 (1st Cir. 1991). All of the claims alleged as

violations of the Eighth Amendment, therefore, will be liberally

construed as alleging Fourteenth Amendment violations.

6

and his attention deficit hyperactivity disorder, was denied

necessary hygiene items such as soap and a toothbrush, was denied

access to any religious materials, and was not given any paper or

writing instruments to allow him to correspond with the courts

and his attorney.2

Discussion

I. Unexhausted Claims

To the extent that plaintiff seeks redress for alleged

violations of his constitutional rights by any individual state

or county agency or employee, he attempts to state a claim under

42 U.S.C. § 1983. Section 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. See 42 U.S.C. §

1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on 

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7

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

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

An action brought pursuant to § 1983 alleging a violation of

constitutional rights based on prison conditions must be

exhausted through a prison’s administrative grievance procedures

prior to the filing of the action.

No action shall be brought with respect to prison

conditions under section 1983 of this title, or 

any other Federal law, by a prisoner confined in 

any jail, prison, or other correctional facility 

until such administrative remedies as are 

available are exhausted.

42 U.S.C. § 1997e(a). This exhaustion requirement “applies to

all inmate suits about prison life, whether they involve general

circumstances or particular episodes.” See Porter v. Nussle, 534

U.S. 516, 532 (2002). 

The adequacy of the prison grievance procedures available to

an inmate to address his specific claims is not relevant to the

question of exhaustion. Exhaustion through prison administrative

grievance procedures is required even if some or all of the

relief desired by the inmate is not available through that

process. Booth v. Churner, 532 U.S. 731, 734 (2001). “[T]here

is no ‘futility exception’ to the . . . exhaustion requirement.” 

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 7 of 28
8

Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 35 (1st Cir.

2002). 

If any grievance procedures exist at the defendant

institution, the plaintiff must utilize them before filing an

action in this court, regardless of the ability of the facility’s

grievance process to provide the relief sought. Acosta v. U.S.

Marshals Serv., 445 F.3d 509, 514 (1st Cir. 2006) (citing MedinaClaudio, 292 F.3d at 36 for the proposition that § 1997e(a)

“clearly contemplates exhaustion prior to the commencement of the

action as an indispensable requirement. Exhaustion subsequent to

the filing of suit will not suffice.”) (emphasis in original));

see also Dullen v. Cheshire County, Civ. No. 05-cv-139-PB 2006 WL

995131 *3 (D.N.H. Apr. 14, 2006).

Glenn has attached, to the amendment to his complaint, a

number of documents demonstrating that he has clearly exhausted

some of his claims against the HCDC and its employees by filing

an Inmate Request Form, then, when the issues were not resolved,

filing a grievance that was considered by a Captain and then

reviewed by Superintendent O’Mara. Glenn’s submissions, however,

also demonstrate that Glenn did not grieve every issue that he

raises in his complaint, and that for those claims which he began

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 8 of 28
3At least one federal appeals court has found that the

failure to allege exhaustion in the complaint does not constitute

failure to state a claim, as the prisoner bears no obligation to

plead exhaustion. Anderson v. XYZ Corr. Health Servs., Inc., 407

F.3d 674, 681 (4th Cir. 2005). The Anderson Court held, however,

that a reviewing court may raise the exhaustion issue sua sponte

where the plaintiff inmate is given a chance to respond prior to

the case being dismissed. Id. at 682-83.

9

to exhaust through the administrative grievance procedure, he

failed to utilize all of the remedies available to him at the

HCDC and the NHSP. Accordingly, I find that Glenn has not

demonstrated that he has completely exhausted all of his claims,

and I recommend to the District Judge that the claims which have

not been fully exhausted be dismissed from the complaint without

prejudice to refiling after those claims are properly exhausted. 

See 42 U.S.C. § 1997e(c)(1) (requiring the Court to dismiss a

prison conditions action sua sponte if the Court is satisfied

that the plaintiff has failed to state a claim upon which relief

might be granted)3; LR 4.3(d)(2)(A).

Glenn has not demonstrated that the following claims raised

in his complaint have been exhausted, as Glenn has provided no

documentation of any administrative grievance process or has

provided documentation showing only partially completed grievance

procedures: 

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 9 of 28
10

1. Plaintiff was subjected to inhumane conditions of 

confinement between October 7, 2005 and October 11, 

2005 at the HCDC as he was provided with inadequate 

clothing and linen to keep warm, was denied all hygiene

products, was kept on lockdown for the entire four 

days, and was not permitted to speak at all during 

those four days, in violation of his Fourteenth 

Amendment right to humane conditions of confinement;

2. During his time at NHSP, plaintiff was kept in constant

confinement for 24 hours/day at the Secure Housing Unit

in violation of his Fourteenth Amendment right to 

humane conditions of confinement;

3. Plaintiff’s privacy was violated at the HCDC when strip

searches of his persons and his showers were 

videotaped, in violation of his Fourth Amendment 

privacy rights;

4. Plaintiff was denied all access to religious materials,

including religious reading material during part of his

stay at the HCDC in violation of his First Amendment 

right to exercise his religion;

5. While at HCDC, Plaintiff was denied the ability to 

access the courts and his attorney because he was 

denied all paper, writing instruments and other 

materials necessary to correspond with the courts and 

his attorney in violation of his First Amendment right 

to access the courts;

6. Plaintiff was prevented from speaking to other inmates 

in order to organize legal action against the HCDC for 

abusive practices against inmates by the initiation of 

a disciplinary action against him designed to chill his

First Amendment right to petition the government for a 

redress of grievances, and by institutional rules that 

are unconstitutional as they were applied to Glenn;

7. Plaintiff was not given soap while at the HCDC in 

violation of his Fourteenth Amendment right to humane 

conditions of confinement;

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 10 of 28
4The monitoring challenged in this claim actually took place

during a previous incarceration of Glenn’s in the HCDC. At least

one federal appeals court has found, however, that if an inmate

is reincarcerated in the facility where he has previously been

subjected to a constitutional violation, he is required to use

the available grievance process to exhaust the claim before

coming to this Court. Berry v. Kerik, 366 F.3d 85, 88 (2d Cir.

2004). The First Circuit has ruled that exhaustion requirements

apply if exhaustion is logistically possible. See MedinaClaudio, 292 F.3d at 34 (transfer from one prison to another does

not affect inmate’s obligation to exhaust administrative remedies

in the first facility for incidents that occurred there before

filing suit).

11

8. The NHSP illegally seized and searched Glenn’s mail in 

violation of his First and Fourth Amendment rights 

(grievance filed with the Warden of the NHSP but not 

the Commissioner of the New Hampshire Department of 

Corrections);

9. The HCDC illegally monitored Glenn’s phone 

conversations (suppression motions filed in the state 

courts but no grievance filed in the HCDC);4

10. The HCDC conducted unreasonable strips searches of 

Glenn (Glenn filed an Inmate Request Form which was 

denied by Capt. Dionne who stated that “searches are 

random” but no grievance to the Superintendent was 

filed);

11. At both the NHSP and the HCDC, Glenn was improperly 

placed on a 23-24 hour/day lockdown due to the severity

of the pending charge against him, rather than any bad 

behavior in the institution, which subjected him to 

improper punishment during his pretrial detention 

(Glenn filed an Inmate Request Form at the HCDC and an 

Inmate Request Slip at the NHSP, but never filed 

anything with the administrative heads of those 

institutions).

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12

I recommend that these claims, numbered one to eleven, be

dismissed because Glenn did not fully exhaust his administrative

remedies with respect to those claims. The need to dismiss these

claims at this time is in no way a comment on the substantive

merits of the claims. If this recommendation is approved, the

dismissal will be without prejudice; Glenn is free to exhaust his

claims and file an additional action in this Court regarding

those claims. 

II. Exhausted Claims

Glenn has demonstrated exhaustion of the administrative

remedies available to him for the remainder of his claims before

this Court. Accordingly, I will conduct preliminary review of

the following claims to determine whether or not Glenn has stated

any claim upon which relief might be granted.

I note at the outset that Glenn has relied on the

Constitution’s prohibition against cruel and unusual punishment

in asserting his claims. However, because Glenn was a pretrial

detainee rather than a convicted inmate at the time the

violations were alleged, his claims are properly pressed under

the due process protections afforded a pretrial detainee under

the Fourteenth Amendment. See, e.g., Lyons v. Powell, 838 F.2d

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 12 of 28
13

28, 29 (1st Cir. 1988) (per curiam) (rejecting an Eighth

Amendment challenge to pretrial detention). Detainees have a

constitutional right under the due process clause of the

Fourteenth Amendment to be free of punishment. See O’Connor v.

Huard, 117 F.3d 12, 15 (1st Cir. 1997), cert. denied, 522 U.S.

1047 (1998). However, challenged conditions or restrictions

which can be rationally related to some legitimate administrative

goal or security concern generally will not be deemed

unconstitutional “punishment.” Id. Therefore, the issue in

evaluating claims by a pretrial detainee is ultimately whether

the conditions of confinement were reasonably related to a

legitimate state interest or were intended instead as punishment. 

See Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d 315, 317 (1st

Cir. 1995).

12. Cell Conditions at HCDC

While at HCDC, Glenn alleges that he was not permitted

adequate exercise, as he was only allowed to exercise in his cell

or walk around his housing area during his out-of-cell time. 

Glenn alleges that the exercise he could do in the confines of

his cell was inadequate to maintain his health. Glenn grieved

this issue to the HCDC officials and was not given relief through

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 13 of 28
14

that process. Glenn names Cusson, Dempsey, Dionne, O’Mara and

Archambault as defendants to this claim.

Glenn further alleges that his strict conditions of

confinement were not related to any penological interest because

he was not poorly behaved at the HCDC, but were only related to

the severity of the charge against him. For that reason, Glenn

alleges that lack of access to exercise, as well as the other

harsh conditions of his pretrial confinement, were attributable

to a heightened security status imposed as pretrial punishment

for the charges against him and therefore violate his due process

rights. 

At the HCDC, Glenn received only one hour of out-of-cell

time each day. On at least six occasions, that time was afforded

him between 3:30 and 4:30 in the morning. His grievance on this

matter was deemed “unfounded” and no action was taken to provide

out-of-cell time at a more reasonable hour. Glenn alleges that

this violation of his rights was again due to the fact that he

was being punished, with severe restrictions on his liberty

because of his charge, rather than as a result of a criminal

conviction. Glenn alleges that these violations were effected by

defendants Dionne and O’Mara. Glenn further alleges that the

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 14 of 28
15

lights in his cell were kept on all night until he complained to

Dionne about it, creating an environment in which it was

difficult to sleep. He alleges that Dionne is responsible for

the lights in his cell. 

Glenn also alleges that he was housed in a cell without

adequate heat in violation of his due process rights under the

Fourteenth Amendment. Because of the uncomfortable temperature

in his cell, Glenn alleges he got a runny nose and cold feet. 

His grievance on this matter was deemed “unfounded” and no

further action was taken. 

As a pretrial detainee, Glenn is entitled to non-punitive

conditions of confinement. While the defendants in this matter

have no obligation to make incarceration pleasant for the

plaintiff, even at the pretrial stage, they are required to

provide living conditions that are humane and are not the result

of punishment for the charges against him. Therefore, while the

various cell conditions Glenn complains of might not constitute

unconstitutionally inhumane conditions of confinement if

considered individually or in isolation or for a convicted

prisoner, liberally construing Glenn’s claims, as I must at the

preliminary review stage of the proceedings, the combination of

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 15 of 28
16

conditions described, combined with the allegation that these

conditions were imposed to punish Glenn for the severity of his

charge, is cognizable in a § 1983 action, as it alleges a

violation of Glenn’s Fourteenth Amendment due process rights. 

Accordingly, in an Order issued simultaneously with this Report

and Recommendation, I will direct that this claim be served on

defendants Cusson, Dionne, Archambault, and O’Mara. See LR

4.3(d)(2)(A)(i).

13. Inadequate Food

The Fourteenth Amendment is at least as protective of the

rights of pretrial inmates as the Eighth Amendment is of

sentenced inmates. The Eighth Amendment prohibits any punishment

which violates civilized standards of decency or involves the

“unnecessary and wanton infliction of pain.” Ingraham v. Wright,

430 U.S. 651, 670 (1977) (quoting Estelle, 429 U.S. at 102-03). 

An Eighth Amendment claim challenging conditions of confinement

contains both an objective and a subjective component. See

Wilson v. Seiter, 501 U.S. 294, 298 (1991). The objective

component requires the plaintiff to demonstrate that he has been

subjected to specific deprivations that are so serious that they

deny him “the minimal civilized measure of life’s necessities.” 

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 16 of 28
17

Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The subjective

component requires the plaintiff to demonstrate that the prison

officials acted wantonly, with deliberate indifference to the

plaintiff’s serious needs. See Farmer v. Brennan, 511 U.S. 235,

834 (1994); Wilson, 501 U.S. at 298-99. Deliberate indifference

is the reckless disregard of a substantial risk of serious harm.

“Eighth Amendment liability requires more than ordinary lack of

due care for the prisoner’s interests or safety.” Farmer, 511

U.S. at 835. 

Glenn alleges that he was denied adequate food to sustain

his health and maintain a healthy weight. Glenn attempted to

grieve these issues to HCDC officials on several occasions and

was advised that dieticians approve the HCDC meals according to

nationally established standards for caloric intake. Glenn

alleges, however, that he is larger than average and requires

greater than average caloric intake. It does not appear that the

HCDC officials made any effort to assess Glenn individually to

assure that his nutritional needs were being met, despite the

fact that he advised them that the diet was causing health

problems for him, namely, Glenn alleges that he lost 33 pounds

between November 24, 2005 and March 1, 2006 at an unhealthy rate. 

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 17 of 28
18

For purposes of preliminary review, Glenn has alleged enough to

indicate that he may be able to state a claim for a deprivation

of his right to the basic necessities of life. Glenn has named

Dempsey, Dionne, Ives, and O’Mara as defendants to this claim. 

In my Order issued simultaneously with this Report and

Recommendation, I will direct that this claim be served on those

defendants. See LR 4.3(d)(2)(A).

14. Inadequate Mental Health Treatment

Glenn alleges that at HCDC, he was denied adequate treatment

for his serious mental health needs. Glenn alleges that he

entered the HCDC on medication for post-traumatic stress disorder

and attention deficit hyperactivity disorder, and that medication

was not provided for him during his pretrial incarceration,

causing him to suffer unnecessarily from his serious mental

health conditions. Glenn alleges that he complained to the

defendants that he was in need of treatment for his mental health

conditions but was denied treatment. Glenn further alleges that

the defendants were aware that on a prior HCDC incarceration,

Glenn required medication for these conditions and that the HCDC

medical staff was aware that Glenn was taking prescribed

medication for his conditions prior to his October 7, 2005

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 18 of 28
19

admission to the HCDC.

The Eighth Amendment protects prison inmates from prison

officials acting with deliberate indifference to their serious

medical needs. See Farmer, 511 U.S. at 831. 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, 452 U.S. 347; 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, 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 a doctor’s

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 19 of 28
20

attention.’”). The Eighth Amendment applies to a prison’s

administration of medical care, including mental health care. 

See DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991); Torraco

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

deliberate indifference to an inmate’s mental health needs

violates the Eighth Amendment). 

“Adequate medical care” is treatment by qualified medical

personnel who provide services that are of a quality acceptable

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, 923 F.2d at 234. 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). 

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 20 of 28
21

Glenn has alleged serious mental health conditions that have

been identified by medical personnel in and out of the HCDC as

needing medication. Glenn has also alleged that the defendants

to this claim were aware of Glenn’s need for medication and have

denied it to him nonetheless. I find therefore that Glenn has

adequately alleged a claim of deprivation of adequate mental

health care, by virtue of the defendants’ deliberate indifference

to his mental health needs, and I will direct this claim to

proceed in my Order issued simultaneously with this Report and

Recommendation against HCDC medical staff defendants Ward,

Harris, Hartley, Condont, and against O’Mara.

15. Restricted Speech

Glenn alleges that he was not allowed to speak to any

inmates during his incarceration at HCDC. Upon grieving this

issue, he was advised by Sgt. Gordon that he could in fact speak

to other inmates, but was not permitted to speak to any inmate in

lockdown or to speak in a way that disturbed the unit. Given

that Glenn spent a good part of his HCDC pretrial incarceration

in a unit of locked down cells, Glenn’s claim amounts to an

allegation that the rules are unconstitutional as applied to him,

as they impede his First Amendment right to free speech, and his

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22

Fourteenth Amendment due process rights. Glenn has attached a

copy of a disciplinary report in which he was subjected to

disciplinary charges for participating in a cell-to-cell

conversation between the inmates on lockdown regarding organizing

to fight the abusive treatment of prisoners at the HCDC through

legal action. The disciplinary charges were not for speaking to

inmates in lockdown or disrupting the unit, but for “Inciting

Deceptive Mail Practices,” because another inmate involved in the

discussion talked about sending letters to the Department of

Justice and the press through outside third parties so that the

mail would not be censored by HCDC officials. In fact, after

reviewing the report of the incident, the shift commander

recommended reviewing the outgoing mail of the inmates involved

in the discussion.

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

Case 1:06-cv-00099-JD Document 8 Filed 10/03/06 Page 22 of 28
23

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

(1972). “[I]ntentional obstruction of a prisoner’s right to seek

redress of grievances is precisely the sort of oppression that .

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

F.2d 584, 588 (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 him

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, Beard v. Banks, 126 S.Ct. 2572, 2579

(2006) (citing 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,

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512 U.S. 1209 (1994) (prison officials cannot lawfully impose a

disciplinary sanction against a prisoner in retaliation for the

prisoner’s exercise of his constitutional right). 

Glenn alleges that he was not permitted to speak as a result

of discussing potential legal action against abusive practices by

HCDC employees. To the extent that the rules restrict talking to

inmates in lockdown, any inmate on the locked down unit for any

length of time is essentially forbidden from talking at all

because the other inmates within earshot are also locked down. 

Therefore, in addition to stating a claim that his First 

Amendment rights were violated, the speaking restriction may

state a claim that the restriction imposes a punitive condition

when applied to a pretrial inmate who is housed in a lockdown

because his charge is serious, in violation of Glenn’s Fourteenth

Amendment due process rights. 

Accordingly, I find that this restriction on speaking

sufficiently alleges a violation of Glenn’s First and Fourteenth

Amendment rights to allow it to proceed. Glenn names Sgt.

Gordon, Roger Copp, Lt. Scurry, and O’Mara as defendants to this

action.

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III. Official Capacity Suit/Municipal Liability

Glenn has named all of the defendants to this action in both

their individual and official capacities. As I recommend

dismissal of all of the state-employed defendants to this action

on the grounds that Glenn has failed to state claims against

them, I address the official capacity suit as it applies to a

suit against a municipal or County employee. An official

capacity suit is one that essentially sues the government entity

in the stead of a person responsible for the alleged conduct.

Municipalities and local government entities are “persons”

within the meaning of § 1983. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690 (1978). Under New Hampshire law,

counties, such as Hillsborough, are considered local governmental

units. See N.H. Rev. Stat. Ann. (“RSA”) 507-B:1 (1997) (defining

“governmental unit” as “any political subdivision within the

state including any county, city, town . . ., but [not including]

the state or any department or agency thereof.”). In order to

maintain an official capacity suit against the county of

Hillsborough as a municipality under § 1983, the claim must be

grounded upon an unconstitutional municipal custom or practice

and two requirements must be met. “First, the custom or practice

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must be attributable to the municipality, i.e., it must be ‘so

well settled and widespread that the policymaking officials of

the municipality can be said to have either actual or

constructive knowledge of it yet did nothing to end the

practice.’” Miller v. Kennebec County, 219 F.3d 8, 12 (1st Cir.

2000) (quoting Bordanaro v. Mcleod, 871 F.2d 1151, 1156 (1st

Cir.), cert. denied, Everett v. Bordanaro, 493 U.S. 820 (1989)). 

Second, the custom must have been the cause of and “the moving

force” behind the deprivation of constitutional rights. Wood v.

Hancock County Sheriff’s Dep’t, 354 F.3d 57, 64 (2003) (citing

Miller, 219 F.3d at 12. Glenn has not asserted any facts that

demonstrate that the county of Hillsborough engaged in a custom

or policy of allowing or enabling employees of the HCDC to

violate the plaintiff’s rights in the manner described in Glenn’s

complaint. I find, therefore, that Glenn has not stated a claim

against the county of Hillsborough, and I recommend that the

official capacity suits be dismissed from this action and the

action proceed against the County defendants who remain in this

action only in their individual capacities.

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V. 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). A 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.” Id. at 44. Here, Glenn has

alleged that O’Mara, in his supervisory capacity, specifically

approved the exhausted claims by reviewing Glenn’s grievances and

expressly refusing to take any action to correct the problem

addressed in the grievance. Therefore, Glenn has sufficiently

alleged that O’Mara condoned or authorized the actions that Glenn

asserts violate his constitutional rights. Accordingly, I find

that Glenn has adequately stated claims against O’Mara in his

supervisory capacity to allow them to proceed at this time.

Conclusion

I find that Glenn has stated claims for unconstitutionally

punitive conditions of confinement, inadequate food, inadequate

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mental health care and treatment, and the unconstitutional

restriction of his right to petition the government for a redress

of grievances; I will direct, in my Order issued this date, that

these claims be served on defendants Cusson, Dionne, Archambault,

O’Mara, Dempsey, Dionne, Ives, Ward, Harris, Hartley, Condont,

Gordon, Copp, and Scurry. I recommend the remaining claims and

defendants be dismissed from this action.

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: October 3, 2006

cc: Charles Glenn, pro se

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