UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William J. Carey

v. Civil No. 06-cv-293-SM

Charles Ward, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff William J. Carey has filed a complaint,

pursuant to 42 U.S.C. § 1983, alleging that defendants have

abridged his rights under the Eighth and Fourteenth Amendments to

the United States Constitution by denying him adequate medical

and dental care (document no. 2). Named as defendants are the

Hillsborough County Department of Corrections (“HCDOC”) and three

HCDOC employees: Dr. Charles Ward; LPN Denise Hartley; and an

unnamed dentist.

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). For the reasons stated below, I conclude that

Carey has alleged cognizable Eighth Amendment claims against

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Hartley and Ward based on the denial of adequate medical care. I

recommend dismissal of all remaining claims. I further recommend

that Carey’s motion for alternative service (document no. 6) be

granted.

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). 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. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988). I apply this standard in reviewing Carey’s

complaint.

Background

Crediting the factual allegations in the complaint in the

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light most favorable to Carey, the material facts are as follows. 

Carey is currently incarcerated at the Northern Correctional

Facility (“NCF”). This action arises from events that occurred

during his pretrial detention at the HCDOC, where he allegedly

was denied adequate medical and dental care. 

As to his medical claims, Carey alleges that Ward and

Hartley denied him adequate medical care for a hernia. When

Carey arrived at the HCDOC in March 2003, his “hernia had just

appeared, as a small bump well inside his umbilical cavity,” at

which time he reported his condition to the HCDOC medical staff. 

Since then, Carey claims, the hernia “has grown to many times the

original size, so that it now protrudes beyond the umbilical

cavity” and causes him physical and psychological discomfort. 

Although he has reported his on-going medical problems to Ward

and Hartley and requested medical treatment, they allegedly

failed to provide him with adequate care. 

As to Carey’s dental claims, he alleges that an unnamed

prison dentist denied him adequate dental care for injuries he

sustained when he was attacked by his cell-mate in 2003. During

the attack, Carey sustained several broken teeth and injury to

his jaw, including problems with the alignment and movement of

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1While the provisions of the Eighth Amendment do not extend

to pretrial detainees, the Due Process Clause of the Fourteenth

Amendment provides them with rights which are at least as great

as the Eighth Amendment protections available to a convicted

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his jaw, all of which cause him pain. He allegedly reported his

dental problems to the HCDOC but was denied adequate care. He

now brings this action pursuant to Section 1983, alleging that

defendants’ acts and omissions rise to the level of

constitutional deprivations.

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

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

order to be held liable for a violation under Section 1983, a

defendant’s conduct must have been a cause in fact of the alleged

constitutional deprivation. See Monell v. Department of Social

Servs., 436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056,

1061-62 (1st Cir. 1997). The premise of Carey’s Section 1983

claim is that the defendants, acting under color of state law,

denied him adequate medical and dental care in violation of his

rights under the Eighth and Fourteenth Amendments.1

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prisoner. See Burrell v. Hampshire County, 307 F.3d 1, 7 (1st

Cir. 2002).

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To state an Eighth Amendment claim premised on inadequate

medical care, “a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to

serious medical needs.” See Estelle, 429 U.S. at 97. In order

to be found deliberately indifferent, a prison official “must

both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also

draw the inference.” Id. See Farmer v. Brennan, 511 U.S. 825,

837 (1993). Deliberate indifference may be manifested by prison

doctors in their response to the prisoner’s needs or by prison

personnel “intentionally denying or delaying access to medical

care or intentionally interfering with the treatment once

prescribed.” Estelle, 429 U.S. at 104-05. 

“A ‘serious medical need’ is 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.’” See Mahan v. Plymouth County House of

Corrections, 64 F.3d 14, 17-18 (1st Cir. 1995) (quoting

Gaudreault v. Salem, 923 F.2d 203, 208 (1st Cir. 1990). The

denial of dental care may give rise to a constitutional violation

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when the denial results in a substantial risk of serious harm to

a prisoner. See Farrow v. West, 320 F.3d 1235, 1243-44 (11th

Cir. 2003)(need for dental care combined with the effects of not

receiving it may give rise to an Eighth Amendment claim); Chance

v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)(finding serious

dental need where plaintiff alleged extreme pain, deterioration

of his teeth and an inability to eat properly); Boyd v. Knox, 47

F.3d 966, 969 (8th Cir. 1995)(delay in dental care coupled with

knowledge of patient’s pain can support Eighth Amendment claim).

A. Denial of Adequate Medical Care

As to Carey’s claims based on the denial of adequate medical

care, the complaint alleges sufficient facts to state an Eighth

Amendment claim against Hartley and Ward. First, Carey described

a serious medical condition by stating that he suffers from a

hernia which, he claims, “has grown to many times the original

size, so that it now protrudes beyond the umbilical cavity” and

causes him physical and psychological discomfort. 

Second, construed liberally, the complaint demonstrates

deliberate indifference with respect to Hartley and Ward by

alleging that once they had knowledge of Carey’s serious medical

needs, they nevertheless denied him proper medical care or failed

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2To the extent Carey alleges that defendants denied him

adequate medical care prior to August 7, 2003, his claims are

time-barred because of his failure to file within the statutory

limitations period. In adjudicating civil rights claims under 42

U.S.C. § 1983, federal courts borrow the statute of limitations

applicable to personal injury actions under the law of the forum

state. See Wilson v. Garcia, 471 U.S. 261, 276-80 (1985);

Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 2 (1st Cir. 1995). 

The applicable statute in this case is New Hampshire Revised

Statutes Annotated 508:4, I (2003), which establishes a threeyear limitations period for personal injury actions in New

Hampshire. The instant complaint was filed on August 7, 2006,

therefore, any claims arising prior to August 7, 2003 are timebarred.

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to ensure that he received proper care. Construed liberally, the

complaint alleges that Hartley and Ward had knowledge of Carey’s

hernia beginning in March 2003 and continuing through the present

time.2 In support of his complaint, Carey has filed copies of

HCDOC medical records. While the signatures of the HCDOC medical

staff are unclear, the records reveal that the medical staff

treated Carey on March 4, 2003, March 11, 2003, November 20,

2003, August 3-4, 2003 and June 11, 2005 and noted on each visit

that he suffered from a hernia. To date, Carey claims, he has

not received adequate care for his condition. 

If true, the allegations demonstrate that defendants’ acts

and omissions prevented Carey from receiving prompt and essential

medical treatment for his serious medical needs. Accordingly, I

find that Carey has stated Eighth Amendment claims against

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Hartley and Ward premised on the denial of adequate medical care

occurring after August 7, 2003.

B. Denial of Adequate Dental Care

1. Claims Against Ward and Hartley

As to Carey’s denial of adequate dental care claims, I

conclude that the complaint fails to allege sufficient predicate

facts to support an Eighth Amendment claim against Ward and

Hartley. Carey alleges that he suffers from serious dental

problems, including several broken teeth, injury to his jaw and

problems with the alignment and movement of his jaw. However, he

has not demonstrated deliberate indifference by Ward and Hartley

with regard to any delay or denial of dental treatment. Although

the HCDOC medical records reveal that Hartley was aware that 

Carey was receiving dental treatment at the HCDOC, there is no

indication that she interfered with his dental treatment or

denied him such care. Nor is there any indication in the records

that Ward interfered with Carey’s dental treatment or denied him

such care. In light of the unsupported claims against Ward and

Hartley, I conclude that Carey has failed to allege cognizable

Eighth Amendment claims premised on the denial of adequate dental

care and, therefore, recommend dismissal of the claims against

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them.

2. Claim Against the Unnamed HCDOC Dentist

As to Carey’s denial of adequate dental care claim against

the unnamed HCDOC dentist, I recommend that the claim be

dismissed as duplicative.

“A federal suit may be dismissed ‘for reasons of wise

judicial administration . . . whenever it is duplicative of a

parallel action already pending in another federal court.’” 

Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.

1993)(quoting Ridge Gold Standard Liquors, Inc. v. Joseph E.

Seagram & Sons, Inc., 572 F. Supp. 1210, 1213 (N.D. Ill. 1983));

accord Adeogba v. Migliaccio, 266 F. Supp. 2d 142, (D.D.C. 2003). 

District courts are accorded “a great deal of latitude and

discretion” in determining whether one action is duplicative of

another, but generally an action is duplicative if the “claims,

parties, and available relief do not significantly differ between

the two actions.” Id. (quoting Ridge Gold, 572 F. Supp. at

1213); accord James v. AT & T Corp., 334 F. Supp. 2d 410, 411

(S.D.N.Y. 2004).

Here, the denial of adequate dental care claim against the

unnamed HCDOC dentist is duplicative of the claims raised in

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Carey’s parallel action pending before this court (Civil No. 05-

cv-274-PB). In that action, Carey sued the HCDOC and an unnamed

HCDOC dentist for failing to provide adequate dental care for

injuries he sustained to his teeth and jaw following an assault

by his cell-mate in 2003. His injuries included several broken

teeth, injuries to his jaw and problems with the alignment and

movement of his jaw. By report and recommendation, I concluded,

among other things, that Carey stated a cognizable Eighth

Amendment claim against an unnamed HCDOC dentist for the denial

of adequate dental care. My Report and Recommendation was

approved on December 27, 2005 (attached). That action is

currently are pending before this court. 

In addition, the parties in both actions are similar. In

both actions, Carey alleges claims against an unnamed HCDOC

dentist. Because the claims, parties and available relief do not

significantly differ between Carey’s earlier action and this

action, I conclude that the instant claim is duplicative. 

Accordingly, I recommend that Carey’s Eighth Amendment denial of

adequate dental care claim against the unnamed HCDOC dentist be

dismissed.

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II. Municipal Liability

Named as a defendant in this action is the HCDOC, a

municipal entity. Municipalities and local government entities

are “persons” within the meaning of Section 1983. See Monell,

436 U.S. at 690. A municipal entity cannot be held liable under

Section 1983 on a theory of respondeat superior or vicarious

liability; rather the municipality itself must proximately cause

the constitutional injury, through promulgation or tacit approval

of a policy or custom. See Canton v. Harris, 489 U.S. 378, 385

(1989). To state a viable Section 1983 claim, a plaintiff must

allege in substance that the challenged municipal custom or

policy was the “moving force” behind the constitutional

violations. See Brown, 520 U.S. at 404; McCabe v. Life-Line

Ambulance Service, Inc., 77 F.3d 540, 544 (1st Cir. 1996)

(citations omitted).

In this action, if Carey intends to pursue claims against

the HCDOC he must, at a minimum, allege that his constitutional

deprivations were the product of a municipal custom or policy. 

Even liberally construing the complaint, I cannot reasonably

conclude that the wrongful conduct ascribed to the defendants was

the product of any unconstitutional municipal custom or policy. 

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Instead, the complaint plainly alleges that the wrongful conduct

to which Carey was subjected resulted from the actions taken by

individual defendants and not as the result of a policy

statement, ordinance, regulation or officially adopted decision. 

See Monell, 436 U.S. at 690. Nothing in the complaint

demonstrates how the county or the HCDOC was the “moving force”

behind the actions or omissions by Ward and Hartley. 

Accordingly, I conclude that the complaint fails to state a

viable claim premised on municipal liability and, therefore,

recommend that the HCDOC be dismissed from this action.

Construed liberally, the complaint also names Ward and

Hartley in their official capacities as officers of the HCDOC. 

Official capacity suits against officers of an agency are simply

“another way of pleading an action against an entity of which an

officer is an agent.” Monell, 436 U.S. at 690 n.55. See also

Brandon v. Holt, 469 U.S. 464, 471 (1984)(suits against parties

in their official capacities treated as suits against the

municipality). Because I find no municipal liability as to the

HCDOC, I extend that reasoning to defendants Ward and Hartley and

conclude that the official capacity claims against them fail.

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Conclusion

For the reasons stated above, I conclude that Carey has

alleged cognizable Eighth Amendment claims against Hartley and

Ward based on the denial of adequate medical care. I recommend

dismissal of all remaining claims. By separate order issued

simultaneously with this report and recommendation, I authorize

the above viable claims to proceed. I further recommend that

Carey’s motion for alternative service (document no. 6) be

granted.

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

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

plaintiff disagrees with the identification of the claims herein,

plaintiff must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

moving to amend the complaint. 

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 Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

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United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 2, 2006

cc: William J. Carey, pro se

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ATTACHMENT 1

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William Carey

v. Civil No. 05-cv–274-PB

Hillsborough Department of Corrections, et al

O R D E R

I herewith approve the Report and Recommendation of Magistrate Judge

Muirhead dated November 22, 2005, no objection having been filed.

SO ORDERED.

December 27, 2005 /s/ Paul Barbadoro 

Paul Barbadoro

United States District Judge

cc: William Carey, pro se

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