1Perfetto has named the following defendants, employees of

the New Hampshire Department of Corrections (“NHDOC”) and/or the

New Hampshire State Prison (“NHSP”) as defendants to this matter:

NHSP Warden Bruce W. Cattell, NHDOC Commissioner William L.

Wrenn, NHSP Unit Manager Lucy Bilodeau, NHSP Counselor Robert

McGrath, NHSP Sgt. First Name Unknown (“FNU”) O’Brien, NHSP Lt.

Joe Michaud, NHSP Cpl. FNU Brown, NHSP Sex Offender Treatment

Program Director Kim Marsh, former NHSP Warden Jane Coplan, NHSP

Maj. Ross Cunningham, former NHDOC Commissioner Steven Curry,

NHSP Corrections Officer (“CO”) FNU Charter, NHSP inmate Timothy

Wheeler, NHSP CO FNU Fidelli, NHSP CO FNU Enmark, NHSP CO FNU

Valente, NHSP CO FNU Ash, NHSP CO FNU Leitner, NHSP Medical

Department (all staff), NHSP Sgt. FNU Perron, NHSP CO FNU

Washburn, NHSP Mental Health Department (all staff), NHSP CO FNU

Edsil, NHSP Officer in Charge of H-Building First Shift, NHSP CO

FNU Isman, NHSP CO FNU Isabelle, NHSP CO FNU Mosher, Secure

Housing Unit (all staff), NHSP CO FNU Bell, NHSP Sgt. FNU

Provencher, NHSP Unit Manager Matthew Moyer, NHSP CO Jessica

Mallette, NHSP CO FNU Flynn, NHSP Dr. FNU Fellows, NHSP Unit

Manager Tim Moquin, NHSP Lt. FNU Gauthier, NHSP Sgt. FNU Parent,

NHSP Sgt. FNU Desmond, former NHSP Sex Offender Treatment Program

Director Irene McCormack, and NHSP COs John Does #1-#6.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jonathan Andrew Perfetto

v. Civil No. 06-cv-307-SM

Bruce W. Cattell, Warden,

New Hampshire State Prison, et al.1

REPORT AND RECOMMENDATION

Before the Court is Jonathan Andrew Perfetto’s complaint

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 1 of 47
2Perfetto filed his initial complaint in this matter

(document no. 1) on August 18, 2006. Perfetto then successfully

moved to consolidate this matter with another pending case in

this Court, Perfetto v. Cattell, Civ. No. 06-cv-372-PB. The

complaint in that case was then docketed in this case (document

no. 15) on November 16, 2006. On January 3, 2007, Perfetto filed

an addendum to the November 16 complaint (document no. 24). All

three of these documents, in the aggregate, will be considered to

be the complaint in this matter for all purposes. 

2

(document nos. 1, 15 & 24)2, filed pursuant to 42 U.S.C. § 1983. 

Perfetto alleges that the defendant employees of the New

Hampshire Department of Corrections (“NHDOC”) have violated a

number of Perfetto’s constitutional rights during his

incarceration at the New Hampshire State Prison (“NHSP”). 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 direct, in an

Order issued simultaneously with this Report and Recommendation

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

deprivation of sanitary conditions proceed against defendants

Valente, Ash, Fidelli, and Charter; the claim alleging denial of

water proceed against a John Doe defendant; the claims alleging

failure to protect Perfetto’s safety proceed against defendants

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 2 of 47
3

Moyer, Bell, Washburn, Flynn, Moquin, Gauthier, and Parent; the

excessive force claims proceed against defendants Charter,

Wheeler, Fidelli, and Enmark; the denial of adequate medical care

claims proceed against defendants Charter, Moyer, Ismam, Flynn,

and a John Doe defendant; the retaliation claim proceed against

defendants Bilodeau, McGrath, O’Brien, Michaud, Brown, and Marsh;

the denial of access to the courts claim proceed against

defendants O’Brien and Brown; and the right to petition the

government to redress grievances through the administrative

grievance procedure proceed against defendants Charter, Edsil,

and Isabelle. I recommend that all of the official capacity

claims, the claims alleging denial of clothing, denial of food,

denial of appropriate housing, denial of lower security

classification, verbal harassment, denial of adequate mental

health care, denial of rehabilitative programming, denial of

religious practice, denial of personal property, and named

defendants Cattell, Wrenn, Coplan, Cunningham, Curry, Leitner,

Perron, Mosher, Provencer, Mallette, Fellows, and Desmond be

dismissed from this action.

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 3 of 47
4

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. 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).

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 4 of 47
3Perfetto has alleged a variety of claims spanning a period

of several years, many of which are factually distinct, and

involve different legal theories and different defendants. For

the sake of clarity, I will include the relevant factual

allegations for each claim with the discussion of that claim’s

legal merit, rather than setting out the factual allegations in a

separate section.

4The claims as identified herein will be considered for all

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

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.

5

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).

Discussion3

I. Section 1983 Claims4

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal constitutional

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 5 of 47
542 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 . . . .

6

or statutory law. See 42 U.S.C. § 19835; 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.

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

819 (1997). 

II. Conditions of Confinement

A. Factual Background

1. Deprivation of Clothing

Perfetto alleges that on August 1, 2003, defendants Charter

and Moyer, as well as the entire second shift staff at the NHSP’s

Secure Housing Unit (“SHU”) placed Perfetto in the SHU’s dayroom

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 6 of 47
7

to await open bed space. Perfetto was directed by an unnamed

officer to remove all of his clothing except for his boxer

shorts.

2. Deprivation of Sanitation and Hygiene

Perfetto further alleges that from May 15-17, 2004, he was

denied access to a toilet, a shower, toileting supplies, sanitary

housing conditions generally, clothing, linens, eating supplies,

and other necessary items by defendants Valente, Ash, Fidelli,

and a John Doe defendant. 

Between May 2004 and August 2004, Perfetto alleges that he

asked defendant Valente, who was then under the supervision of

defendant Ash, if he could use the toilet. Perfetto claims that

Valente denied Perfetto access to a toilet and instructed him to

defecate on the floor instead. Further, Perfetto alleges that on

one occasion, defendant Charter forced Perfetto to roll on the

floor in his own urine.

3. Deprivation of Food and Water

Perfetto alleges that on May 16, 2004 defendants Valente and

Washburn did not give him lunch. Defendant Fidelli then ordered

Perfetto to bang his own head on the dayroom window in order to

get a lunch tray. Perfetto further alleges that on July 15,

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 7 of 47
8

2004, he was denied lunch when Fidelli poured grape juice into

his food.

Perfetto states that while he was housed in the SHU dayroom

from May 15-17, 2004, and again from May 28-June 1, 2004, that

the first shift staff at SHU refused to allow him to get a drink

of water with either his medications or his meals. Perfetto

states that he was forced to drink his own urine to keep himself

hydrated.

4. Denial of Proper Classification and Housing

Perfetto alleges that from March 6-10, 2003, he was placed

on a “precautionary watch” at the direction of Dr. Fellows

because he was hoarding his medications. Perfetto claims that

his precautionary watch status should have resulted in his being

placed in a cell, but that he was kept in the SHU dayroom during

that time by defendants Washburn, Perron, Moyer, and the third

shift officer in charge. Perfetto further charges that from May

28 - June 1, 2004, he was housed in the SHU dayroom rather than

in a cell by defendants Mosher and Washburn, although Perfetto 

does not State why he believes he was entitled to cell placement

at that time.

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 8 of 47
9

Perfetto claims that on August 24, 2006, he was upgraded to

a higher security classification for a ninety day period. 

Perfetto claims that defendants Mosher, Washburn and Moquin

denied him a reclassification board hearing for an additional

eighteen days beyond the ninety days. During those eighteen

days, Perfetto received three disciplinary write-ups, two for the

destruction of State property for ripping his blanket, and one

for having coffee that didn’t belong to him. These write-ups

resulted in Perfetto being kept at the higher classification

level for an additional period of time. Perfetto now alleges

that had he been returned to a lower security classification at

the end of ninety days, it is unlikely that he would have gotten

the disciplinary write-ups and the resulting increase in his

security classification.

5. Failure to Protect

Perfetto alleges that on August 1, 2003, he had been housed

in the Closed Custody Unit, but was placed into protective

custody and transferred to the SHU. Perfetto states that his

safety was the responsibility of defendants Moyer, Bell, and

Washburn at that time. However, between August 4, 2003 and

September 29, 2003, he was, on four separate occasions, housed in

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 9 of 47
10

a cell with a general population inmate, which jeopardized his

safety.

 Perfetto states that defendants Flynn, Moquin, Gauthier, and

Parent were responsible for his safety and failed to protect him

on September 20, 2003, when he was moved to a tier where a “keep

away” inmate was also housed. 

Perfetto alleges that on November 15, 2006, he and his

cellmate were engaged in a heated argument during which his

cellmate almost hit Perfetto, but did not. Although this

occurred in full view of defendant Flynn, Flynn failed to move

Perfetto to a different cell. 

B. Legal Analysis

1. Eighth Amendment Claims

To state a claim that the conditions of his incarceration

were in violation of the Eighth Amendment’s guarantee against

cruel and unusual punishment, Perfetto must demonstrate that he

was subjected to conditions that resulted in a deprivation of his

right to humane treatment that was objectively serious, and that

the official who caused the deprivation was “deliberately

indifferent” to his needs. See Farmer v. Brennan, 511 U.S. 825,

841 (1994) (citing Canton v. Harris, 489 U.S. 378, 390 (1989));

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 10 of 47
11

Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 63-64 (1st Cir.

2002); Giroux v. Somerset County, 178 F.3d 28, 32 (1st Cir.

1999). A challenged condition of confinement is objectively

serious, standing alone or in combination with other conditions,

if it deprives the inmate of an identifiable, human need. See

Wilson v. Seiter, 501 U.S. 294, 304 (1991). A prison official is

“deliberately indifferent” if he is “aware of facts from which

the inference could be drawn that a substantial risk of serious

harm exists,” and also draws the inference. Farmer, 511 U.S. at

837 (1994). Thus, an Eighth Amendment claim arises only if an

official inflicts “cruel and unusual punishment” by knowing of

and disregarding “an excessive risk to inmate health or safety.” 

Id. at 837, 838; see Giroux, 178 F.3d at 32 (explaining how the

official must have “an actual, subjective appreciation of risk”). 

 Here, Perfetto claims that the conditions of his confinement

were at times so inhumane that the defendants responsible for his

health violated his Eighth Amendment rights to be free of cruel

and unusual punishment. Perfetto first claims that he was forced

to strip to his underwear on one occasion while housed in the

dayroom at SHU. Nothing in this allegation, which essentially

alleges an uncomfortable situation, rises to the level of a

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 11 of 47
12

constitutional violation and I recommend that the claim based on

the denial of clothing in the dayroom be dismissed. 

Perfetto further claims that he was denied the use of a

toilet, toilet supplies, or any access to hygiene equipment for

the period between May 15 and May 17 in 2004. I find that the

deprivation of access to a toilet and other supplies necessary to

maintain minimally adequate hygiene for that three-day period

states a violation of Perfetto’s right not to be deprived of the

basic necessities of civilized life, and in my Simultaneous

Order, I will direct that this claim be served on defendants

Valente, Ash, and Fidelli. Perfetto additionally alleges that

Valente and Ash on one additional occasion denied him access to a

toilet and directed him to defecate on the floor during the

period between May and August of 2004. I find that this

allegation, too, states a sufficiently serious and intentional

deprivation of a basic human need to direct, in my Simultaneous

Order, service of this claim against Valente and Ash. Similarly,

Perfetto sufficiently alleges a denial of humane conditions of

confinement claim against Charter for forcing Perfetto to roll on

the floor in his own urine to allow that claim to proceed against

Charter. 

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 12 of 47
6If Perfetto wishes to pursue this claim against the

currently unnamed officers, he will have to obtain the

responsible officers’ full name or names in discovery and

appropriately move to amend the complaint. To this end, upon

13

Perfetto’s claims that he was deprived of lunch do not rise

to the level of a constitutional violation. While prison

officials have an obligation to provide Perfetto with adequate

nutrition and “the minimal civilized measure of life’s

necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981), two

missed lunches in a two month period do not suffice to state a

denial of a need. Accordingly, I recommend that the claims based

on denial of food be dismissed. Perfetto goes on to claim,

however, that he was denied access to water to a sufficient

degree that he was required to drink his own urine to keep

himself adequately hydrated. Such a claim does allege a denial

of the minimal level of necessities the prison is obligated to

provide. Perfetto alleges that he was denied water by the first

shift staff at SHU, but he has failed to name any individual

defendant or defendants responsible for that violation. 

Therefore, as Perfetto has stated a claim upon which relief might

be granted for a denial of water from May 15 through May 17, 2004 

and again from May 28 through June 1, 2004, I will direct service

of the claim against a John Doe defendant at this time.6

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 13 of 47
service of this action on the named defendants, Perfetto can

serve the named defendants with interrogatories to obtain the

full names of the presently unnamed defendants pursuant to Fed.

R. Civ. P. 33(a) which states in pertinent part:

Without leave of court or written stipulation, 

any party may serve upon any other party 

written interrogatories, not exceeding 25 in 

number including all discrete subparts, to be 

answered by the party served or, if the party 

served is a public or private corporation or a 

partnership or association or governmental 

agency, by an officer or agent, who shall 

furnish such information as is available to 

the party. 

14

2. No Right to Particular Classification or Housing

An inmate has no liberty interest in being housed or

classified in a particular facility or in a particular security

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

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

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

confinement to which the prisoner is subjected is within the

sentence imposed upon him and is not otherwise violative of the

Constitution, the Due Process Clause does not in itself subject

an inmate’s treatment by prison authorities to judicial

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

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

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 14 of 47
15

Mass. State Penitentiary, 592 F.2d 1, 3 (1st Cir.), cert. denied,

444 U.S. 849 (1979) (citing Meachum, 427 U.S. at 224-25). As

prison inmates do not have any liberty interest in where they are

housed, transfers within the prison are well within the

discretion of prison officials, and inmates are not protected

from such transfers by the constitution. See Olim v. Wakinekona,

461 U.S. 238, 244-45 (1983) (citing Meachum, 427 U.S. at 224-25,

to support the conclusion that prisoners have no liberty interest

protecting them from housing transfers). Accordingly, I

recommend that Perfetto’s claims based on dayroom housing, delay

in reclassification, and an extension of time spent in a higher

security classification be dismissed as they fail to raise a

constitutional claim upon which relief might be granted.

3. Right to Protection from Other Inmates

The safety and security of all prisoners is protected by the

Constitution. See e.g., Youngberg v. Romeo, 457 U.S. 307, 315

(1982). Perfetto alleges that on several occasions he was housed

with inmates who posed a potential risk to his safety. To state

a claim upon which relief might be granted, Perfetto must allege

that the defendants were aware of and deliberately indifferent to

a serious risk to his safety at the hands of other inmates. See

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 15 of 47
16

Burrell v. Hampshire County, 307 F.3d 1, 7 (1st Cir. 2002). 

Here, Perfetto has alleged that he was a protective custody

inmate who was subjected to a significant risk to his personal

safety when he was housed with inmates in the general population,

that he was housed near a specific inmate who posed a threat to

him, and that he was kept in a cell with an inmate who posed a

demonstrated physical threat to him. Liberally construing these

allegations, I find that Perfetto has alleged that the defendant

officers knowingly placed Perfetto into situations that posed a

significant potential risk to his safety and thereby failed to

adequately protect him. Accordingly, in my Simultaneous Order, I

recommend that the claims alleging that Perfetto was placed in

cells with general population inmates be served on defendants

Moyer, Bell and Washburn, that the claim that Perfetto was housed

on a tier with a “keep away” inmate be served on defendants

Flynn, Moquin, Gauthier, and Parent, and that Perfetto’s claim 

that he was left in a cell with a physically threatening inmate

be served on defendant Flynn.

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 16 of 47
17

III. Abuse by Prison Employees

A. Physical Abuse/Excessive Force

1. Factual Background

Perfetto alleges that in July of 2004, defendant Charter

directed another inmate, Timothy Wheeler, to “hose down” Perfetto

as punishment for the crimes underlying Perfetto’s incarceration,

which Wheeler did. Perfetto also alleges that on May 15, 2004,

in the SHU dayroom, on two separate occasions, his face was

slammed into the wall, first by defendant Fidelli and then by

defendant Enmark. Perfetto further states that defendant Leitner

saw the assault by Enmark.

2. Legal Analysis

To state a claim for the use of excessive force by a prison

official under the Eighth Amendment, an inmate must demonstrate

“unnecessary and wanton infliction of pain.” Whitley v. Albers,

475 U.S. 312, 320 (1986). The primary inquiry in determining

whether prison officials used excessive physical force turns on

“whether force was applied in a good faith effort to maintain or

restore discipline, or maliciously and sadistically to cause

harm,” whether or not significant injury is evident. Hudson v.

McMillian, 503 U.S. 1, 6-8, 10 (1992) (citing Whitley, 475 U.S.

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 17 of 47
18

at 320-21). “That is not to say that every malevolent touch by a

prison guard gives rise to a federal cause of action.” Hudson v.

McMillian, 503 U.S. at 9. “Not every push or shove, even if it

may later seem unnecessary . . . violates a prisoner’s

constitutional rights.” Id. (internal citations omitted). The

Eighth Amendment “excludes from constitutional recognition de

minimis uses of physical force, provided that the force is not of

a sort repugnant to the conscience of mankind.” Id. at 9-10

(quoting Whitley, 475 U.S. at 327 and Estelle, 429 U.S. at 106).

In determining whether a plaintiff has stated a claim for

unconstitutionally excessive force, the court should look to the

following four factors: (1) “the need for application of force,”

(2) “the relationship between the need and the amount of force

that was used,” (3) “the extent of injury inflicted,” and (4)

“whether the force was applied in good faith to maintain or

restore discipline or maliciously and sadistically for the very

purpose of inflicting harm.” Garcia v. City of Boston, 115

F.Supp.2d 74, 81 (D. Mass. 2000), aff’d, 253 F.3d 147 (1st Cir.

2001).

Applying the Hudson v. McMillian standard and the factors

set forth in Garcia to this case, I find that Perfetto alleges

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 18 of 47
7If Perfetto intended that Leitner be named as a defendant

to this claim, I find he alleged only that Leitner witnessed a

single assault by defendant Enmark, and not that Leitner

undertook or omitted any action which resulted in injury to

Perfetto. Accordingly, I do not authorize service of this claim

on Leitner.

19

that significant force or physical punishment was utilized

against him when he was hosed down by Wheeler at Charter’s

direction, and also when his head was twice slammed into the wall

on May 15, 2004. Because I must liberally construe Perfetto’s

allegations in his favor, I find that Perfetto’s claims include

allegations that the force was unnecessary and in excess of what

was reasonable in the situation, and that in each instance, was

occasioned by the desire to maliciously and sadistically inflict

pain rather than to achieve any penologically legitimate goal. 

Accordingly, in my Simultaneous Order, I will direct that claims

of excessive force be served against defendants Charter, Wheeler,

Fidelli, and Enmark.7 

B. Verbal Harassment/Inhumane Treatment

1. Factual Background

Perfetto alleges that on July 1, 2003, defendant Isabelle

asked him a number of humiliating questions, such as whether or

not he harbored a sexual attraction for children, and called him

a pedophile. On September 11, 2003, Isabelle refused to let

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 19 of 47
20

Perfetto approach his cell door to get water to take with his

medications because, according to Isabelle, Perfetto had an “ugly

face.” Perfetto further alleges that on May 15-17, 2004, May 28-

June 1, 2004, and June 30-August 5, 2004, he was verbally

harassed by Charter, Isabelle and Valente, under the supervision

of defendant Ash. This harassment included a direction to

Perfetto that he had to use the floor to defecate, and a threat

that he would be beaten if he smeared his own waste on his body.

Perfetto similarly alleges that defendant Charter called

Perfetto “skinner” and “diddler,” which are slang terms for child

molesters, repeatedly questioned Perfetto about his sexual

preferences, on one occasion ordered Perfetto to sing “I’m A

Little Teapot” in order to get a mattress, and once ordered

Perfetto to dance. The complaint is silent as to how Perfetto

responded to these orders or the consequences of his response.

2. Legal Analysis

Perfetto alleges that he was subject to a pattern of abuses

that were designed to harass and torment him. Perfetto does not

identify any reason why the correctional staff might be

particularly hostile to him. In general, nonphysical abuse or

harassment does not invoke constitutional protection. See

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 20 of 47
21

Shabazz v. Cole, 69 F.Supp.2d 177, 198-201 (D.Mass. 1999) (citing

authority to explain that racial slurs and verbal threats do not

violate a prisoner’s constitutional rights). Even presuming that

the facts Perfetto alleges are true, these assertions, while

describing unprofessional and reprehensible conduct on the part

of the offending officers, fail to establish behavior that is

unconstitutional. Accordingly, I recommend that the harassment

claims be dismissed.

IV. Inadequate Medical and Mental Health Care

A. Treatment for Medical and Mental Health Needs

1. Factual Background - Medical Claims 

Perfetto alleges that between August 1, 2003 and October 11,

2003, he was repeatedly denied prescribed medication because the

medications would be allowed to run out, even though he had

submitted timely requests for refills. Further, once he was able

to have his medication reinstated, the date on the medication

card would indicate that the medication had been withheld from

him for two to five days after it had been received. Perfetto

names defendants Charter, Moyer, and the second shift Officer in

Charge of SHU, as well as all of the second shift SHU staff to

this claim. Perfetto further alleges that on August 1, 2003, his

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 21 of 47
22

eyeglasses were taken from him by an unnamed officer at the SHU,

and although he was told that the eyeglasses were lost, they were

returned to him when he left the SHU on October 11, 2003.

On May 14, 2004, Perfetto alleges that his medications were

dispensed to him twice by defendant Ismam, rather than once as

prescribed, due to the fact that Ismam was unskilled in

dispensing medication. Perfetto further alleges that his

Tegretol prescription was dispensed in double doses from July of

2004 through August 15, 2004, by members of the second shift SHU

staff.

On May 15, 2004, Perfetto requested medical attention after

having his head twice slammed into a wall by COs in the SHU

dayroom. He was denied medical attention by all of the NHSP

medical staff as well as defendants Perron and Washburn.

On November 4-5, 2006, during medication call, defendant

Flynn told Perfetto that his medication was not available. On

November 6, 2006, Perfetto saw Dr. Fellows who agreed to notify

the pharmacy of the problem. Perfetto received his Prozac that

evening, but the card with it indicated that it had been sent on

November 3. Perfetto deduced that the second shift staff at SHU

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 22 of 47
23

had not given him his medication for the previous two days,

although it had been received on the unit.

On December 17, 2006, Perfetto alleges that a John Doe CO

lied and told Perfetto that his new card for Risperadol was not

available. When the third shift SHU staff made rounds, Perfetto

asked CO Rose to see if the Risperadol had arrived. Rose

returned fifteen minutes later with Perfetto’s medication. 

2. Factual Background - Mental Health Claims

Between May 28 and June 1, 2004, Perfetto alleges he was

improperly housed in the SHU dayroom because defendants Washburn

and Perron told him there was no cell space available. Perfetto

alleges that this housing placement was inappropriate because he

was mentally ill.

On July 6, 2004, Perfetto asked for mental health attention

because he was locked in a four foot by four foot bathroom for

two hours. Mental health attention was denied by all of the

mental health staff at NHSP as well as defendants Perron and

Washburn.

On November 28, 2006, Perfetto alleges that he was abusively

locked in the shower room on his unit for requesting a shower. 

For two days, when Dr. Fellows made his rounds, Perfetto asked to

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 23 of 47
24

see Fellows privately regarding the alleged abuse. Fellows did

not see Perfetto until November 30, 2006. 

3. Legal Analysis

Claims of inadequate medical or mental heath 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, 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 had a serious medical need for which

adequate care was not provided. Farmer, 511 U.S. at 832; 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)

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 24 of 47
25

(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.”). 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 based on medical

considerations and are of a quality acceptable to 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, 923 F.2d at 234. Constraints inherent in a prison

setting may affect the choice of care provided, and may be

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 25 of 47
8Perfetto’s claim that he was told his Risperadol was not

in, but was later given the medication, does not allege that he

was denied proper medication or proper medical care. 

Accordingly, the allegations related to Risperadol will not be

considered as part of the inadequate medical care claim in this

action.

26

relevant to whether or not prison officials provided inadequate

care with a deliberately indifferent mental state. Wilson, 501

U.S. at 302.

Here, Perfetto has alleged that he was denied his prescribed

medication, or denied the proper dosage of his prescribed

medication, by Charter, Moyer and the second shift staff at SHU

between August 1, 2003 and October 11, 2003, by Ismam on May 14,

2004, by the second shift staff at SHU between July 2004 and

August 15, 2004, and on November 4-5, 2006 by defendant Flynn and

the second shift staff at SHU. Perfetto also alleges that he was

denied his eyeglasses by the officer in charge at SHU on August

1, 2003, for a period of two and a half months.8 A prescription

medication is, by definition, medical treatment that has been

deemed necessary by a medical professional. I find, therefore,

that intentionally withholding Perfetto’s medication or delaying

Perfetto’s receipt of the medication is actionable under § 1983. 

Accordingly, I find that Perfetto has stated claims against

Charter, Mayer, Ismam, and Flynn for denying him prescribed

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27

medication. While Perfetto has also alleged that other SHU

officers were involved in the denial of adequate medical care, he

has failed to name any other individual officers to this action. 

As explained earlier, however, Perfetto is free to obtain the

names of these individuals through the discovery process and move

to amend his complaint to add additional defendants when he is

able to identify them by name.

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). Perfetto

claims that he was deprived of his eyeglasses by the officer in

charge of SHU on August 1, 2003. I find that while Perfetto has

alleged sufficient facts to state a cause of action for the

denial of his eyeglasses, I can only direct this claim to proceed

against a John Doe defendant until the responsible officer is

identified and Perfetto amends his complaint to add the officer

as a defendant.

Perfetto also claims that his Eighth Amendment rights were

violated when he was refused immediate medical or mental health

attention on May 15, 2004, July 6, 2004, and November 28-29,

2006, and when he was denied a cell between May 28 and June 1,

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 27 of 47
9In support of his claim that he was improperly denied

access to the SOP, Perfetto alleges that the SOP is the only

program at the NHSP which requires that an inmate be disciplinary

free before enrollment is allowed. Whether or not that is true,

it is immaterial to my consideration of this claim.

28

2004. I find that for these claims Perfetto has not stated facts

sufficient to allow me to determine that any serious medical or

mental health need was present and was known to the defendants

but denied. Accordingly, I recommend that those claims be

dismissed from this action.

B. Denial of Rehabilitative Programming

1. Factual Background

In December of 2002, Perfetto was selected to begin the

sexual offender treatment program (“SOP”) in January of 2003. 

One week later, Perfetto received a letter from then SOP Director

McCormack indicating he was going to be discharged from the

program for receiving two write-ups during that week. The letter

further advised Perfetto that if he remained disciplinary free,

he could reapply to the SOP after ninety days.9 In September of

2003, Perfetto reapplied to the SOP and was permitted to join the

program on November 30, 2003. 

Perfetto was discharged from the program on April 2, 2004

for engaging in sexually aggressive behavior. Perfetto was

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 28 of 47
29

permitted to apply for re-entry to the program, however, if he

remained disciplinary free for ninety days. In September of

2004, Perfetto did reapply to the SOP and was readmitted in

August of 2005. However, on November 17, 2005, Perfetto was

permanently terminated from the SOP for violating his behavior

contract. Since May of 2006, Perfetto alleges that he has been

trying to get onto the waiting list for the SOP but he his

requests have been denied. 

2. Legal Analysis

As Perfetto has not alleged that the denial of access to the

SOP has resulted in a denial of necessary care and treatment for

a serious health need, it appears that he is attempting to allege

a violation of a right to rehabilitative programming. Inmates,

however have no constitutional right to participate in a

rehabilitation program. See Moody v. Daggett, 429 U.S. 78, 88

n.9 (1976) (inmate has no constitutional entitlement to

rehabilitative programming sufficient to invoke due process when

decision regarding eligibility for program is discretionary with

prison officials). Accordingly, I find that Perfetto cannot

state a § 1983 claim for the denial of rehabilitative programming

such as the SOP and I recommend this claim be dismissed.

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 29 of 47
10It may well be that the “unprofessional response” referred

to by Perfetto, once the details of that response are

established, is insufficient to constitute an adverse action, a

necessary element in a retaliation claim. For purposes of

preliminary review, however, I afford the allegations liberal

construction and find that Perfetto has stated the minimum facts

necessary to allege a claim against McGrath and Marsh upon which

relief might be granted.

30

V. First Amendment Claims

A. Denial of the Right to Petition the Government for a 

Redress of Grievances

1. Factual Background

Perfetto states that during his incarceration, he has

engaged in adversarial proceedings in both the prison’s

administrative grievance system and in the courts against

defendants Cattell, Wrenn, Bilodeau, McGrath, O’Brien, Michaud,

Brown, and Marsh. As a result, he states that he has been

retaliated against in a number of ways. Perfetto states that

defendant Bilodeau issued written threats to Perfetto and

wrongfully intercepted a request Perfetto filed on August 10,

2006. Further, Perfetto alleges that he received an unspecified

unprofessional response from defendants McGrath and Marsh to a

grievance he filed on July 20, 2006,10 and that he was denied

access to grievance forms and request slips. 

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 30 of 47
31

On August 7 and 8, 2006, in what Perfetto alleges were

retaliatory acts, defendant Michaud singled out Perfetto for a

cell search. There was no witness to the search, which Perfetto

states is against NHSP policy. On August 7, Michaud took three

magazines and a book, and on August 8 he took Perfetto’s

typewriter, returning it two days later without its ribbon. On

August 10, 2006, defendants O’Brien and Brown singled Perfetto’s

cell out to search, leaving Perfetto’s things in such disarray

that Perfetto claims he became suicidal. Perfetto further

alleges that O’Brien and Brown took his religious materials and

legal documents and destroyed them. Then, on August 14, 2006,

Perfetto was again singled out by defendant Brown for another

cell search. Brown took two newspapers from the cell that were

not marked with Perfetto’s name. 

Perfetto alleges that when his legal documents were

destroyed on August 10, 2006, he was put at a severe disadvantage

in preparing a complaint he was working on. Further, he states

that he was chilled in his pursuit of judicial and administrative

remedies by the retaliation, which resulted in a denial of access

to those avenues of recourse.

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 31 of 47
32

Perfetto also alleges that from July 1, 2004 through August

5, 2004, prior to the acts of retaliation, and while he was

housed at the SHU, he was denied request slips, grievance forms,

pens and pencils by defendants Charter, Edsil, Isabelle, and a

John Doe officer. He also states that during this period,

request slips were only made available to him two or three times

a week, rather than every day. 

2. Legal Analysis

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 (2d Cir. 1999). 

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

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 32 of 47
33

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). 

The Constitution further guarantees a right of access to the

courts. Bounds v. Smith, 430 U.S. 817, 828 (1977). This right

is derived from a number of sources, including the First

Amendment, the Due Process Clause, and the Privileges and

Immunities Clause of the Constitution. See Simmons v. Dickhaut,

804 F.2d 182, 183 (1st Cir. 1986) (collecting cases). Although

prisoners are not granted all of the constitutional rights

guaranteed to nonincarcerated people, they maintain a

constitutional right of access to the courts that affords them

access to the tools necessary to challenge their criminal cases,

criminal convictions and sentences directly or collaterally, to

file habeas petitions, or to challenge the conditions of their 

confinement through civil rights actions. See Lewis v. Casey,

518 U.S. 343, 354-55 (1996). 

In order to state a claim for denial of access to the

courts, a prisoner must “demonstrate that the alleged

shortcomings in the library or legal assistance program hindered

his efforts to pursue a legal claim.” Lewis, 518 U.S. at 351. 

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 33 of 47
34

Therefore, a prisoner seeking relief under § 1983 for such a

violation must allege that the denial of access to legal

materials has hampered his ability to assert an actual legal

claim that he is constitutionally entitled to pursue during his

incarceration. Id.

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 his constitutional

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 34 of 47
35

right). Retaliation can be inferred from the chronology of

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

provided support for inference of retaliation); McDonald, 610

F.2d at 18 (same).

Perfetto alleges that defendants Bilodeau, McGrath, O’Brien,

Michaud, Brown, and Marsh all took actions against Perfetto in

retaliation for his filing of a grievance on July 20, 2006, and

other litigation that he was preparing. As a result, in the

several weeks and months following, these defendants searched

Perfetto‘s cell, seized his property, threatened him, and denied

him access to grievance forms and request slips. While none of

these actions, standing alone, would necessarily give rise to a

constitutional claim, for purposes of preliminary review, I find

that the chronology and substance of events alleged by Perfetto

suffice to state a claim for retaliation; and I will direct in my

Simultaneous Order that this claim proceed against defendants

Bilodeau, McGrath, O’Brien, Michaud, Brown, and Marsh. Perfetto

has also named Cattell and Wrenn as defendants to this claim, but

has not alleged any facts that indicate that either one of them

was directly or indirectly involved in the retaliation Perfetto 

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 35 of 47
36

describes. Accordingly, I will not direct that they be served

with this claim.

Perfetto alleges further that defendants O’Brien and Brown,

by destroying his legal documents, interfered with the

preparation of a civil rights lawsuit. Although the claim is not

detailed, I find that it states sufficient facts to state a claim

for denial of access to the courts, and I will direct in my

Simultaneous Order that the claim be served on O’Brien and Brown. 

Perfetto also alleges that he was denied access to grievance

procedures because he was at times limited in his access to the

appropriate forms, and at times he was denied the forms

altogether, by defendants Charter, Edsil, Isabelle, and Doe. I

find that to the extent he was denied access to the prison’s

grievance procedures, he has stated a claim for a denial of the

right to petition the government for a redress of grievances

against Charter, Edsil, and Isabelle. Perfetto will have to

identify the John Doe defendant to this claim during the

discovery process and move to amend his complaint if he wishes to

add that individual to this action as a defendant.

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 36 of 47
37

B. Denial of Religious Practice

1. Factual Background

Perfetto alleges that on May 15, 2004, in the SHU dayroom,

defendant Fidelli asked Perfetto to remove his crucifix. 

Perfetto states he was unable to remove it due to the effects of

his medication. Perfetto claims that Fidelli then ripped the

crucifix off of Perfetto’s neck.

Perfetto states that from June 28 through August 5, 2004, he

was denied clergy visits by a John Doe visitations officer.

Perfetto states that he was denied personal religious

materials in SHU by a John Doe officer. 

Perfetto states that on August 5, 2006, defendant Mallette

denied him a pass to a Jehovah’s Witness study group.

2. Legal Analysis

The First Amendment’s religion clauses provide that

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.” 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

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 37 of 47
38

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

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 brief.” 

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

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 38 of 47
39

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.” 

Id. 

Perfetto’s allegation that he has been denied the free

exercise of religion amounts to an assertion that he was not

permitted some unspecified materials, that he was denied visits

for a limited period of time from non-prison clergy, that a

crucifix was removed from him, and that he was not permitted to

attend a single religious study group. These allegations, even

if considered in the aggregate, are insufficient to amount to a

deprivation of Perfetto’s right to practice his religion and to

adhere to his sincere religious beliefs. Accordingly, I

recommend that the claim alleging a denial of the free exercise

of religion be dismissed.

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 39 of 47
40

VI. Property Claims

A. Factual Background

A number of Perfetto’s claims allege that one or more of the

defendants have damaged, lost, or improperly seized his property,

including personal property and papers, legal documents,

eyeglasses and a crucifix necklace. Perfetto also alleges that

his property was, on several occasions, improperly inventoried in

violation of NHSP policy. 

B. Legal Analysis

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). Therefore, I recommend all of

Perfetto’s explicit or intended property claims be dismissed from

this action.

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 40 of 47
41

VII. Choice of Defendants

A. Official Capacity Claims

Section § 1983 authorizes suits against state actors

operating to deprive citizens of their constitutional rights. 

Because I have found that Perfetto has alleged constitutional

violations against a number of NHSP employees sufficient to state

a cause of action under § 1983, those individuals -- defendants

Bilodeau, McGrath, O’Brien, Michaud, Brown, Marsh, Charter,

Fidelli, Enmark, Valente, Ash, Washburn, Edsil, Ismam, Isabelle,

Bell, Moyer, Flynn, Moquin, Gauthier, and Parent -- will be

defendants to this suit in their individual capacities.

Perfetto also sued the defendants in their official

capacities. It is well-settled that the Eleventh Amendment bars

suits against state entities and state agents working in their

official capacities unless the state has expressly waived

immunity, which has not been done by New Hampshire for actions

brought under § 1983. See P.R. Aqueduct & Sewer Auth. v. Metcalf

& Eddy, Inc., 506 U.S. 139, 144 (1993) (absent waiver, neither a

State nor agencies acting under its control may be subject to

suit in federal court); Will v. Mich. Dep’t of State Police, 491

U.S. 58, 71 (1989) (holding that neither a state nor its

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 41 of 47
42

officials acting in their official capacities are “persons” under

§ 1983). 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. 

Accordingly, I recommend dismissal of all of the official

capacity claims against the defendants to this action.

B. Supervisory Liability

Perfetto has named defendant Ash as a defendant to this suit

in his supervisory capacity. “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 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 (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. Here,

Perfetto’s claims suffice to allege that Ash was aware of the

denial of access to a toilet which Perfetto alleges occurred

between May and August of 2004, and that, as a supervising

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 42 of 47
43

officer, Ash had the authority and ability to remedy the

situation and failed to do so. Accordingly, I find that Perfetto

has stated sufficient facts to allow a claim for supervisory

liability to proceed against Ash. 

C. Defendants Against Whom No Claim is Alleged

Perfetto also has named the following individuals as

defendants to this action: Cattell, Wrenn, Coplan, Cunningham,

Curry, Leitner, Perron, Mosher, Provencer, Mallette, Fellows, and

Desmond. I find that Perfetto has not stated any claims against

these individuals upon which relief might be granted and,

therefore, I recommend they be dismissed from this action.

D. Inmate Timothy Wheeler

In addition to the NHSP employees, Perfetto has named an

inmate, Timothy Wheeler, to this action for his part in turning a

hose on Perfetto as punishment. Ordinarily, a prison inmate who

engages in assaultive behavior on another inmate would be

considered a private actor and would not be liable under § 1983,

which creates a cause of action for unconstitutional behavior

only when it is committed under color of state law. See 42

U.S.C. § 1983; Estades-Negroni v. CPC Hosp. San Juan Capestrano,

412 F.3d 1, 4 (1st Cir. 2005). “It is only in rare circumstances

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 43 of 47
44

that private parties can be viewed as state actors.” Id.

(internal citations omitted). This Circuit has utilized three

tests to determine whether a private party can fairly be

characterized as a state actor: the state compulsion test, the

nexus/joint action test, and the public function test:

Under the state compulsion test, a private party 

is fairly characterized as a state actor when the 

state has exercised coercive power or has provided 

such significant encouragement, either overt or 

covert, that the [challenged conduct] must in law 

be deemed to be that of the State. The nexus/

joint action test provides that a private party 

can be held to be a state actor where an 

examination of the totality of the circumstances 

reveals that the state has so far insinuated 

itself into a position of interdependence with the 

[private party] that it was a joint participant in 

[the challenged activity]. And, in accordance 

with the public function test, a private party is 

viewed as a state actor if the plaintiff 

establishes that, in engaging in the challenged 

conduct, the private party performed a public 

function that has been traditionally the exclusive 

prerogative of the State.

Id. at 5 (citing, inter alia, Blum v. Yaretsky, 457 U.S. 991,

1004, 1005 (1982)).

Here, the facts alleged by Perfetto are sufficient to

satisfy both the state compulsion and the public function test. 

Perfetto alleges that defendant Charter directed Wheeler to spray

Perfetto with a hose. It is reasonable to infer that, for an

Case 1:06-cv-00307-JL Document 28 Filed 02/23/07 Page 44 of 47
45

inmate, a direct order from a corrections officer constitutes the

exercise of coercive power. Further, the act of punishing those

convicted of crimes for their crimes is a public function that

traditionally has been the “exclusive prerogative” of the state. 

Accordingly, Perfetto has alleged sufficient facts to proceed

against Wheeler as a state actor amenable to suit under § 1983. 

VIII. Motion to Appoint Counsel

Perfetto has requested that the Court appoint counsel in

this matter. Perfetto alleges that he is not knowledgeable in

the law and has a mental illness that periodically prevents him

from functioning. 

There is no absolute constitutional right to free legal

representation in a civil case. Bemis v. Kelley, 857 F.2d 14, 15

(1st Cir. 1988). Rather, appointment of counsel in a civil case

is left to the discretion of the court. See 28 U.S.C. § 1915(d). 

An indigent litigant must demonstrate that exceptional

circumstances exist to justify appointment of counsel, such that

without counsel the litigant most likely would be unable to

obtain due process of the law. DesRosiers, 949 F.2d at 23;

Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986) (per

curiam). In the case at hand, Perfetto has failed to establish

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the existence of such circumstances at this time. Perfetto’s

motion for counsel is therefore denied without prejudice to

refiling in the future should circumstances warrant.

Conclusion

For the foregoing reasons, I recommend that the official

capacity claims, the claims alleging denial of clothing, denial

of food, denial of appropriate housing, denial of lower security

classification, verbal harassment, denial of adequate mental

health care, denial of rehabilitative programming, denial of

religious practice, denial of personal property, and named

defendants Cattell, Wrenn, Coplan, Cunningham, Curry, Leitner,

Perron, Mosher, Provencer, Mallette, Fellows, and Desmond be

dismissed from this action. In the Simultaneous Order I direct

service of the unsanitary conditions, denial of water, failure to

protect, excessive force, inadequate medical care, retaliation,

denial of access to the courts, and the denial of the right to

petition the government for a redress of grievances claims

against the properly named defendants to those claims, as

described herein.

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

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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: February 23, 2007

cc: Jonathan Andrew Perfetto, pro se

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