1The complaint alleges violations of the Religious Freedom

Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4 (“RFRA”). In City

of Boerne v. Flores, 521 U.S. 507, 532-36 (1997), the Supreme

Court declared RFRA unconstitutional as it applied to the states

and their subdivisions. See also Cutter v. Wilkinson, 544 U.S.

709, 715 at n.2 (2005). Accordingly, I liberally construe the

complaint to allege violations under RLUIPA, which is the

successor statute to RFRA and which applies to the states. See

Cutter v. Wilkinson, 423 F.3d 579, 582 (6th Cir. 2005).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Albert Kuperman

v. Civil No. 06-cv-420-JD

New Hampshire Department

of Corrections, et al.

REPORT AND RECOMMENDATION

Albert Kuperman has filed a complaint, pursuant to 42 U.S.C.

§ 1983, alleging that defendants abridged his rights under the

First, Eighth and Fourteenth Amendments to the United States

Constitution and New Hampshire law (document no. 1). He further

alleges that defendants abridged his rights under the Religious

Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et

seq. (“RLUIPA”)1 and Title II of the Americans With Disabilities

Act (“ADA”), 42 U.S.C. § 12132, et seq.

Named as defendants are the New Hampshire Department of

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2The NHDOC defendants include: Stephen J. Curry, former

Commissioner; William Wrenn, Commisssioner; and Robert MacLeod,

Administrative Chief, Forensic and Medical Services Division.

The NHSP and NCF defendants include: Bruce Cattell, NHSP

Warden; Greg Crompton, NHSP Deputy Warden; Larry Blaisdell, NCF

Acting Warden; Bernie Campbell, Physical Therapist; doctors

Ippolito and Englander; James Daly, Chaplin; employees Kimberly

Lacasse, Joy Leeks, Judy Baker and Barbara Mooney; and

correctional officers Danielle Charter and Washburn.

2

Corrections (“NHDOC”) and numerous employees of the NHDOC, the

New Hampshire State Prison (“NHSP”) and the Northern New

Hampshire Correctional Facility (“NCF”).2 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 find that Kuperman has

alleged the following claims against Cattell and Blaisdell in

their representative capacities: (1) an Eighth Amendment claim

based on the denial of adequate medical care and a related state

law negligence claim; (2) an Eighth Amendment claim based on the

failure to protect; (3) a First Amendment claim based on the

denial of free exercise of religion; and (4) a RLUIPA claim based

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3Given that Kuperman is represented by counsel, this Court

assumes that administrative remedies have been exhausted.

4Throughout the complaint, Kuperman refers to the NCF and

NHSP collectively as “the prison”.

3

on the substantial burden on religious practices.3 I recommend

dismissal of all remaining claims. 

Background

Kuperman is currently incarcerated at the NHSP. The record

is unclear as to his dates of confinement at the NHSP and the

NCF. Without identifying a particular facility, he alleges that

during the course of his incarceration4 prison officials

subjected him to various constitutional deprivations in violation

of his rights under the First, Eighth and Fourteenth Amendments

to the United States Constitution, RLUIPA and New Hampshire law. 

Acting in their capacity as state employees, defendants allegedly

denied Kuperman adequate medical care, failed to protect him from

attack by other inmates, denied him free exercise of religion and

imposed a substantial burden on his religious practices. He

further alleges that defendants failed to accommodate his

disability under Title II of the ADA. He now brings this action,

alleging that defendants’ acts and omissions rise to the level of

violations under federal and state law.

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4

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. Dep’t of Soc. Servs.,

436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056, 1061-62

(1st Cir. 1997). The premise of Kuperman’s Section 1983 action

is that prison officials subjected him to the following

constitutional deprivations in violation of his rights under the

First, Eighth and Fourteenth Amendments to the United States

Constitution. 

A. Eighth Amendment Claims

1. Denial of Adequate Medical Care

Kuperman alleges that defendants violated his Eighth

Amendment rights by withholding essential medical care.

To state an Eighth Amendment claim premised on inadequate

medical care, “a prisoner must allege acts or omissions

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5

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 (1994). 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 v. Gamble, 429 U.S. 97, 104-05 (1976). “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)). 

Here, the complaint alleges sufficient facts to state an

Eighth Amendment claim for the denial of adequate medical care. 

First, Kuperman has described a serious medical need. He

allegedly suffers from a congenital heart and circulatory

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6

condition described as “total anomalous pulmonary venous return

to the coronary sinus.” This condition required him to undergo

surgery at two years of age. In December 2003, Kuperman

allegedly experienced atrial fibrillation, which required him to

undergo a cardioversion at the Dartmouth Hitchcock Medical Center

(“DHMC”). Electrocardiograms and other tests allegedly indicate

that he continues to suffer from atrial flutter.

Second, Kuperman has demonstrated deliberate indifference

with respect to defendants by alleging that once they were

notified of his serious medical needs, they nevertheless denied

him proper care. Upon his discharge from the DHMC in December

2003, Kuperman was instructed to schedule a follow-up appointment

with a cardiac specialist at DHMC within one month. The prison

allegedly failed to schedule the appointment. While Kuperman has

not provided any supporting medical records, he claims that

Mooney, a nurse on staff at the prison, wrote, “Please make an

appointment to see Dr. Freedman or Dr. Englander to evaluate

whether consult warranted.” Prison medical staff waited until

July 21, 2004 to order the cardiac consult. Kuperman allegedly

was not seen in the cardiology clinic at DHMC until September 2,

2004, eight months after his physician ordered him to be

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5Because Kuperman fails to relate the claims to a particular

defendant and refers to the NCF and NHSP collectively as “the

prison,” I liberally construe the claims to be brought against

Cattell, in his representative capacity as Warden of the NHSP,

and Blaisdell in his representative capacity as Acting Warden of

the NCF.

7

evaluated by a cardiac specialist. 

Kuperman further alleges that defendants failed to monitor

his cholesterol levels and provide him with an appropriate diet,

thereby increasing his risk for cardiac problems. Despite

Kuperman’s continuing atrial flutter, defendants have failed to

provide him with regular diagnostic tests, such as,

electrocardiograms, echocardiograms and blood tests. In

addition, defendants have denied Kuperman’s repeated requests to

be evaluated by his cardiologists at the DHMC. On May 15, 2006,

the DHMC contacted the prison to schedule a cardiology

appointment for Kuperman, however, the prison allegedly refused

to schedule the appointment. If true, the allegations

demonstrate that defendants’ actions and omissions prevented

Kuperman from receiving prompt and essential medical treatment

for a serious condition. Accordingly, I find that he has stated

an Eighth Amendment claim, premised on the denial of adequate

medical care, against Cattell and Blaisdell in their

representative capacities.5 Because the complaint wholly fails

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8

to provide any factual predicate in support of an Eighth

Amendment claim against the remaining defendants, I recommend

dismissal of the claims against them.

2. Failure to Protect

Kuperman alleges that defendants further abridged his Eighth

Amendment rights by failing to protect him from a series of

sexual assaults by other inmates. 

Prison officials have an obligation to protect prisoners

from violence at the hands of other prisoners. See Farmer, 511

U.S. at 833 (citation omitted). “It is not, however, every

injury suffered by one prisoner at the hands of another that

translates into constitutional liability for prison officials

responsible for the victim’s safety.” Id. “Rather, liability

attaches only when two requirements are met”. Espaillat v.

Mousseau, Civ. No. 03-338-SM, 2004 WL 2915287, slip op. at *2

(D.N.H. Dec. 16, 2004). First, the alleged deprivation must be

objectively serious, that is, showing that the inmate is

incarcerated under conditions posing a substantial risk of

serious harm. See Burrell v. Hampshire County, 307 F.3d 1, 7-8

(2002) (citation omitted). Second, the official involved must

have had a sufficiently culpable state of mind, described as

“deliberate indifference” to inmate health or safety. Id. “[A]

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9

prison official ‘cannot be found liable . . . for denying an

inmate humane conditions of confinement unless the official knows

of and disregards an excessive risk to inmate health or safety;

the 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.’” Espaillat, Civ. No. 03-

338-SM, 2004 WL 2915287, slip op. at *2 (citing Farmer, 511 U.S.

at 837).

Here, Kuperman alleges that he was sexually assaulted on at

least four occasions, all of which are documented in prison

records. On January 10, 2004 and on June 29, 2004 through July

8, 2004, he allegedly was continually raped while in the secure

housing unit. On October 8, 2004, another inmate allegedly

“grabbed his testicles, squeezed them and forced him to

ejaculate.” On February 14, 2005, he suffered additional sexual

assaults lasting two days in duration. Although Kuperman

reported the assaults, prison officials failed “to properly

classify and house” him and protect him from repeated assaults

and the risk of serious harm. If true, these allegations may

state a cognizable Eighth Amendment claim premised on the failure

to protect against Cattell and Blaisdell in their representative

capacities.

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6The relevant provision of the Constitution provides that

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.” U.S. Const.

Amend. I (hereinafter “Free Exercise Clause”).

10

B. First Amendment Claim

Kuperman alleges that defendants violated his rights under

the First Amendment’s Free Exercise Clause,6 as applied to the

states through the Fourteenth Amendment, by denying him a kosher

diet.

It is well-established that convicted prisoners do not

forfeit all constitutional protections by reason of their

incarceration. See Bell v. Wolfish, 441 U.S. 520, 545 (1979). 

“In the First Amendment context . . . a prison inmate 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), including the right to free exercise of

religion, see O’Lone v. Estate of Shabazz, 482 U.S. 342, 348

(1987) (citing Cruz v. Beto, 405 U.S. 319, 322 (1972)); accord

Moorish Science Temple, Inc. v. Smith, 693 F.2d 987, 990 (2d Cir.

1982) (“[A] prisoner retains those First Amendment guarantees,

including the right to participate in practices which are an

integral part of his religious faith . . ..”). Prisons must

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11

provide all inmates reasonable opportunities to exercise their

religious freedom. See Cruz, 405 U.S. at 322 n.2. 

Free exercise claims brought by prisoners are “judged under

a ‘reasonableness’ test less restrictive than that ordinarily

applied to alleged infringements of fundamental constitutional

rights.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003)

(quoting O’Lone, 482 U.S. at 349). See also Shaw v. Murphy, 532

U.S. 223, 227-229 (2001). The Supreme Court has held that a

prisoner’s sincerely held religious beliefs must yield if

contrary to prison regulations that are “reasonably related to

legitimate penological interests.” Turner v. Safley, 482 U.S.

78, 89 (1987); see also, Washington v. Harper, 494 U.S. 210, 224

(1990) (prison restrictions that implicate constitutional rights

are judged by the reasonableness standard); O’Lone, 482 U.S. at

351-352 (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).

Here, Kuperman alleges that during his incarceration,

defendants denied him a kosher diet consistent with his religion. 

Kuperman is a member of the Jewish Orthodox religion and claims

that a kosher diet is required by his faith. Although the prison

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12

has provided him with certain kosher meals, he contends that

meals are not well balanced and do not satisfy his dietary

requirements. He further alleges that he repeatedly informed

defendants of his need for a kosher diet and the insufficiency of

the meals provided but that they failed to meet his needs. 

Despite Kuperman’s repeated requests, defendants have denied him

a kosher diet, thereby interfering with his free exercise of

religion. If true, these allegations may state a cognizable

claim under the First Amendment’s Free Exercise Clause against

Cattell and Blaisdell in their representative capacities. 

Because Kuperman has failed to allege sufficient predicate facts

against the remaining defendants, I recommend that the claims

against them be dismissed. 

II. RLUIPA Claim

I liberally construe the complaint to allege that

defendants’ actions have burdened Kuperman’s religious practice

under RLUIPA which, in certain circumstances, prohibits

government infringement on the practice of religion. See

Mayweathers v. Newland, 314 F.3d 1062, 1065 (9th Cir. 2002).

Under RLUIPA, governmental imposition of “substantial burden

on the religious exercise” of a prisoner is prohibited, unless

the burden “(1) is in furtherance of a compelling governmental

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13

interest; and (2) is the least restrictive means of furthering

that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a).

The phrase “religious exercise” is to be construed liberally to

include belief and profession as well as the performance of

physical acts such as assembling with others to worship or

participating in sacramental use of bread and wine. See Cutter,

544 U.S. at 720. RLUIPA applies to both substantial burdens

imposed by programs or activities that receive federal financial

assistance and to substantial burdens on religious exercise

having an effect on interstate commerce. Id at 715-16; 42 U.S.C.

§ 2000cc-1(b). 

Construed liberally, the complaint alleges that defendants

have substantially burdened Kuperman’s religious beliefs by

denying him a kosher diet and preventing him from observing his

faith. If true, these allegations may state a cognizable RLUIPA

claim against Cattell and Blaisdell in their representative

capacities. Because Kuperman has failed to allege sufficient

predicate facts against the remaining defendants, I recommend

that the RLUIPA claim against them be dismissed.

III. ADA Claim

Construed liberally, the complaint alleges that defendants

failed to accommodate Kuperman’s disability and/or provide him

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14

with reasonable modifications in violation of Title II of the

ADA.

Title II of the ADA prohibits discrimination on the basis of

disability. See Buchanan v. Maine, 469 F.3d 158, 170-71 (1st

Cir. 2006). Title II provides that “no qualified individual with

a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. A

“‘qualified individual with a disability’ is defined as ‘an

individual with a disability who, with or without reasonable

modifications to rules, policies, or practices, the removal of

architectural, communication, or transportation barriers, or the

provision of auxiliary aids and services, meets the essential

requirements for the receipt of services of the participation in

programs or activities provided by a public entity.’” United

States v. Georgia, 546 U.S. 151, 126 S. Ct. 877, 879 (2006)

(quoting 42 U.S.C. § 12131(1)). A “public entity” is defined as

“any State or local government” and “any department, agency, . .

. or other instrumentality of a State, § 12131(1).” Id. This

term includes state prisons. Id. (citing Pennsylvania Dep’t of

Corrections v. Yeskey, 524 U.S. 206, 10 (1998)(holding that

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15

“prisons provide inmates with many recreational ‘activities,’

medical ‘services,’ and educational and vocational ‘programs,’

all of which at least theoretically ‘benefit’ the prisoners (and

any of which disabled prisoners could be ‘excluded from

participation in.’”)). 

The First Circuit has held that a plaintiff seeking relief

under Title II must establish:

(1) that he is a qualified individual with a

disability; (2) that he was either excluded from

participation in or denied the benefits of some public

entity’s services, programs, or activities or was

otherwise discriminated against; and (3) that such

exclusion, denial of benefits, or discrimination was by

reason of the plaintiff’s disability.

Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000).

Here, Kuperman alleges that because of his heart and

circulatory condition and an undisclosed back condition, he is

required to sleep on an egg crate mattress. Although the prison

provided him with a pass for an egg crate mattress, Campbell

allegedly withdrew the pass. According to Kuperman, Campbell’s

actions violate his right to receive reasonable accommodations

and modifications for his disability. Kuperman also alleges that

his cardiac condition requires a dietician to monitor his diet. 

Defendants allegedly failed to monitor his diet, thereby further

denying him reasonable accommodations and modifications for his

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16

disability.

Accepting Kuperman’s allegations as true and assuming he is

a qualified individual with a disability, I conclude that he has

failed to allege sufficient facts to state a claim under the ADA. 

The basis of his claim is that defendants denied him a mattress

and proper monitoring of his diet, as required by his medical

conditions. He therefore essentially alleges that he is not

receiving adequate or proper medical care. “[A]n inmate’s

medical treatment, or lack of treatment, does not provide a basis

upon which to impose liability under the ADA . . . “ Egan v.

Virginia Dep’t of Corrections, No. CIV A 7:06CV00338, 2006 WL

2222674 at *2 (W.D. Va. Aug. 2, 2006)(citing Burger v. Bloomberg,

418 F.3d 882, 883 (8th Cir. 2005)). Because Kuperman does not

allege that the lack of proper medical treatment stems from any

discriminatory intent related to a disability, I conclude that he

has failed to alleged sufficient facts to state a cognizable

claim under the ADA. Accordingly, I recommend dismissal of this

claim in its entirety.

IV. State Law Claims

Kuperman alleges that the same conduct that violated his

Eighth Amendment right to adequate medical care amounted to

medical negligence under New Hampshire law. The negligence claim

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17

relates to Kuperman’s heart and circulatory condition and is so

related that it forms part of the “same case or controversy” of

the Eighth Amendment denial of adequate medical care claim. See

28 U.S.C. § 1367(a) (providing for supplemental jurisdiction over

claims that are so related they form part of the same case or

controversy). Accordingly, I conclude that this Court may

exercise supplemental jurisdiction over the medical negligence

claim. 

V. Official Capacity

Construed liberally, the complaint seeks injunctive and

monetary relief for wrongs committed by Cattell and Blaisdell as

state actors 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 Section 1983. See Puerto

Rico 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. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989)(holding that neither a state nor its officials acting in

their official capacities are “persons” under Section 1983). 

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18

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. To the

extent Kuperman brings official capacity claims for monetary

relief against the state defendants, who are officials of the

NHSP and NCF, I recommend that those claims be dismissed. 

On the other hand, official capacity actions against state

actors for prospective injunctive relief are not treated as

actions against the state and may be considered under Section

1983. See Will, 491 U.S. at 71 n.10. Thus, Kuperman is not

barred from bringing claims for prospective injunctive relief

against the defendants in their official capacities.

Conclusion

For the reasons stated above, I find that Kuperman has

stated the following claims against Cattell and Blaisdell in

their representative capacities: (1) an Eighth Amendment claim

based on the denial of adequate medical care and a related state

law negligence claim; (2) an Eighth Amendment claim based on the

failure to protect; (3) a First Amendment claim based on the

denial of free exercise of religion; and (4) a RLUIPA claim based

on the substantial burden on religious practices. I recommend

dismissal of all remaining claims. 

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19

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 further 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 28 U.S.C. §

636(b)(1); 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: February 13, 2007

cc: Nancy Sue Tierney, Esq.

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