1Because the body of the complaint alleges that HCDOC/CMS

denied Carey adequate medical care, I construe the claims to be

brought against CMS and the HCDOC Medical Department.

2Construed liberally, the complaint names O’Mara as a

defendant in his representative capacity.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William J. Carey

v. Civil No. 05-cv-442-PB

Hillsborough County Department of

Corrections, Medical Department 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 and failing to protect him from attack by a cellmate (document no. 1). Named as defendants are the Hillsborough

County Department of Corrections (“HCDOC”), the HCDOC Medical

Department1, HCDOC Superintendent James O’Mara2 and Correctional

Medical Services (“CMS”). 

The complaint is before me for preliminary review to

Case 1:05-cv-00442-PB Document 4 Filed 03/06/06 Page 1 of 10
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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 recommend that

the complaint be dismissed.

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.

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Factual Background

Crediting the factual allegations in the complaint in the

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

Carey, a pretrial detainee at the HCDOC, alleges that during the

course of his incarceration prison officials subjected him to

constitutional deprivations in violation of his Eighth and

Fourteenth Amendment rights. Defendants allegedly denied him

adequate medical and dental care and failed to protect him from

attack by his cell-mate. He now brings this action pursuant to

Section 1983, alleging that defendants’ acts and omissions rise

to the level of constitutional deprivations.

Prior Litigation

The claims in this action are identical to certain claims

alleged in Carey v. Hillsborough County Department of

Corrections, et al., 05-cv-274-PB. In that case, I concluded

that Carey stated Eighth Amendment claims for denial of adequate

dental care against an unnamed HCDOC dentist and failure to

protect against the HCDOC and HCDOC Superintendent, James O’Mara. 

I recommended dismissal of various claims, including the Eighth

Amendment denial of adequate medical care claim against an HCDOC

physician, Dr. Ward. My Report and Recommendation was approved

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4

on December 27, 2005 (attached). 

I. Doctrine of Res Judicata

For the reasons stated below, I conclude that Carey’s Eighth

and Fourteenth Amendment claims for denial of adequate medical

care are barred under the doctrine of res judicata.

Under the doctrine of res judicata, “a final judgment on the

merits of an action precludes the parties or their privies from

relitigating claims that were raised or could have been raised in

that action.” Breneman v. United States ex rel. FAA, 381 F.3d

33, 38 (1st Cir. 2004)(citation omitted). For the doctrine to

apply, three elements must be met:: “(1) a final judgment on the

merits in an earlier proceeding, (2) sufficient identicality

between the causes of action asserted in the earlier and later

suits, and (3) sufficient identicality between the parties in the

two actions.” Brenemman, 381 F.3d at 38 (quoting Banco Santander

de P.R. v. Lopez-Stubbe (In re Colonial Mortg. Bankers Corp.),

324 F.3d 12, 16 (1st Cir. 2003)). “In general, causes of action

are identical for res judicata purposes when they arise from the

same factual transaction.” Baldi v. Broderick, No. 04-cv-466-PB,

2005 WL 2338816, at *5 (D.N.H. Sept. 21, 2005). “[F]ederal law

governs the res judicata effect of a federal court judgment.” 

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5

Id. (citing Apparel Art Int’l v. Amertex Enters., 48 F.3d 576,

583 n.7 (1st Cir. 1995)).

The three elements of res judicata are met as to Carey’s

denial of adequate medical care claim. First, a final judgment

on the merits was issued by this court in an earlier action

(Civil No. 05-cv-274-PB) where the court dismissed, among other

claims, Carey’s denial of adequate medical care claim under the

Eighth and Fourteenth Amendments. Second, there is sufficient

identity between the causes of action in the earlier action and

this action as both seek relief under Section 1983 and the Eighth

and Fourteenth Amendments. In each action, Carey alleged that

defendants failed to provide adequate medical care for injuries

to his neck and right knee and ankle. Third, there is sufficient

identity between the parties in the two actions. Both actions

bring medical care claims against the HCDOC and HCDOC Medical

Department. While CMS is named as a new defendant in this

action, it appears to hold similar interests to the HCDOC Medical

Department. Thus, the fact that CMS is the only new defendant in

this action does not nullify the sufficiency of identity between

the parties of the two actions. See Perez-Guzman v. Gracia, 346

F.3d 229, 233-38 (1st Cir. 2003)(applying res judicata to claims

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6

against new parties where new parties held the same interests as

the original parties); Santiago Otero v. Quirindongo Echevarria,

No. Civ. 05-1443 (DRD), 2005 WL 2671048, at *2 (D.P.R. Oct. 19,

2005)(applying the doctrine of res judicata and holding that

addition of one defendant in later suit did not annihilate the

sufficiency of identity between the parties in the two actions). 

Accordingly, I conclude that Carey’s instant denial of adequate

medical care claim is barred by the doctrine of res judicata.

II. Duplicative Claims

For the reasons stated below, I recommend that Carey’s

remaining claims 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,

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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 Eighth and Fourteenth Amendment claims based on

denial of adequate dental care and failure to protect are

duplicative of the claims raised in 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 regarding injuries to his

teeth and jaw. He further sued the HCDOC and HCDOC

Superintendent for failing to protect him from an assault by his

cell-mate. After conducting a preliminary review of the

complaint, I concluded that Carey stated, among other things, a

cognizable Eight Amendment denial of dental care claim against

the unnamed HCDOC dentist. I further found that he alleged

Eighth Amendment failure to protect claims against the HCDOC and

HCDOC Superintendent. Those claims currently are pending before

this court. In addition, the parties in both actions do not

significantly differ. Although the caption of the complaint

names CMS as a new and sole defendant, construed liberally the

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allegations in the body of the complaint are asserted against

CMS, HCDOC, HCDOC Superintendent and HCDOC Medical Department. 

While CMS and the HCDOC Medical Department are not identical

parties, they nevertheless appear to represent similar interests. 

See Curtis v. DiMaio, 46 F. Supp. 2d 206, 215-16 (E.D.N.Y.

1999)(dismissing suit as duplicative, but only after finding that

although parties were not identical, their interest were

sufficiently aligned). Because the claims, parties, and

available relief do not significantly differ between Carey’s

earlier action and this action, I conclude that the instant

claims are duplicative. Accordingly, I recommend that Carey’s

Eight Amendment claims based on denial of adequate dental care

and failure to protect be dismissed.

Conclusion

For the reasons stated above, I recommend that the complaint

be dismissed. 

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

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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);

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

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: March 6, 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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