UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles Jay Wolff

v. Civil No. 05-cv-309-SM

Stephen Curry, Commissioner,

New Hampshire Department of

Corrections, et al.

REPORT AND RECOMMENDATION

Before the Court is Charles Wolff’s complaint alleging that

the drug testing policies of the New Hampshire Department of

Corrections (“NHDOC”) violate the federal constitutional and

statutory rights of certain inmates with disabilities (document

no. 1). The matter is before me for preliminary review to

determine, among other things, whether Wolff has stated 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) (authorizing the magistrate judge to preliminarily

review pro se pleadings).

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

Case 1:05-cv-00309-SM Document 7 Filed 10/18/05 Page 1 of 5
2

magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation determining 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).

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

Case 1:05-cv-00309-SM Document 7 Filed 10/18/05 Page 2 of 5
1Wolff’s specific request is that the Court order a change

in prison procedures. Generally speaking, the management of such

regulations is a matter for prison administrators, not the

courts. Turner v. Safley, 482 U.S. 78, 89 (1987). Prison

administrators are therefore accorded substantial deference

regarding the management of a correctional facility. Rhodes v.

Chapman, 452 U.S. 337, 349 n.14 (1981); Bell v. Wolfish, 441 U.S.

520, 547 (1979). Liberally construing the request, however, I

will construe the complaint to seek this Court’s declaratory

judgment regarding the constitutionality of the challenged

policies and procedures.

3

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 CIA, 843 F.2d

46, 49 (1st Cir. 1988). 

Background

The NHDOC issues policy and procedure directives (“PPDs”)

that serve to establish governing procedures for various

institutional operations. Wolff complains that the PPD governing

drug testing of inmates violates the federal constitutional and

statutory rights of inmates with mental or physical disabilities

that inhibit the ability to produce a prompt and unadulterated

urine sample upon request by prison authorities. Wolff requests

that this Court direct that the PPDs be changed to allow for

alternative testing procedures for the disabled.1 

Case 1:05-cv-00309-SM Document 7 Filed 10/18/05 Page 3 of 5
2I note that even if Wolff had alleged facts that indicated

some personal harm arising out of the existence of the challenged

PPDs, I would recommend dismissal of this complaint for Wolff’s

failure to complete exhaustion of his administrative grievance

procedures prior to filing this action. Wolff admits in his

September 13, 2005 filing (document no. 4) that he is in the

process of completing exhaustion. Exhaustion must be completed

prior to filing an action or the action must be dismissed. See

Porter v. Nussle, 534 U.S. 516, 524 (2002).

4

Discussion

In all stages of federal judicial proceedings, the parties

must have a personal stake in the outcome of the action. Spencer

v. Kemna, 523 U.S. 1, 7 (1998) (internal citations omitted). 

This means that Wolff’s complaint must allege some injury to

himself that could be redressed by a favorable judicial decision. 

Id. A suit is moot if it fails to present a live case or

controversy. Jackson v. Coalter, 337 F.3d 74, 79 (1st Cir.

2003). Wolff’s request challenges the constitutionality of a PPD

issued by the NHDOC. Wolff has not stated whether or how he has

been injured by the existence of the PPD or how such an injury

would be addressed by the remedy he seeks. I find therefore that

Wolff has not presented a live case or controversy for this Court

to resolve.2 Accordingly, I recommend that this action be 

Case 1:05-cv-00309-SM Document 7 Filed 10/18/05 Page 4 of 5
3Wolff also seeks to certify his suit as a class action

(document no. 4). As I recommend dismissal of this action, I

deny that motion.

5

dismissed as it fails to state a claim upon which relief might be

granted.3

Conclusion

Any objections to this Report and Recommendation must be

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

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

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

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

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 18, 2005

cc: Charles Jay Wolff, pro se

Case 1:05-cv-00309-SM Document 7 Filed 10/18/05 Page 5 of 5