1Gosselin sent a letter with the amended complaint

indicating that he would be filing further addenda or motions to

amend the complaint. However, no additional filings have been

received.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

John J. Gosselin

v. Civil No. 05-cv-050-PB

Stephen J. Curry, et al.

REPORT AND RECOMMENDATION

John J. Gosselin brought suit against employees of the New

Hampshire Department of Corrections (“NHDOC”) in a complaint

filed on February 11, 2005 (document no. 3). The suit alleged

that the defendants had violated Gosselin’s rights under Title II

of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §

12132, et seq. In an Order dated May 19, 2005 (document no. 4),

I directed Gosselin to amend his complaint to demonstrate his

ability to state a claim upon which relief might be granted. 

After obtaining filing deadline extensions (document nos. 5 & 7)

for several months, Gosselin filed an amended complaint (document

no. 9) on September 14, 2005.1 The amended complaint raises

claims against the defendants under both the ADA and 42 U.S.C. §

1983 and requests monetary, declaratory, and injunctive relief. 

Case 1:05-cv-00050-PB Document 11 Filed 02/03/06 Page 1 of 10
2

For the reasons stated herein, I find that Gosselin has not

succeeded in stating any claim upon which relief might be granted

and I now recommend dismissal of this action.

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 is directed to conduct a preliminary review and

to prepare a report and recommendation advising the district

judge 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

Case 1:05-cv-00050-PB Document 11 Filed 02/03/06 Page 2 of 10
2Because Gosselin is pro se, I will consider the facts

alleged in both his initial complaint and his amended complaint

in conducting this review to insure that I have provided him with

every opportunity to state a claim upon which relief might be

granted.

3

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

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). 

Application of this standard 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).

Background2

John Gosselin is a “schizophrenic insomniac” who has been in

the custody of the NHDOC since 1987. From 1990 until 2004,

Gosselin was housed in North Unit, a relaxed and trouble-free

medium security housing unit at the New Hampshire State Prison

(“NHSP”). In March of 2004, Gosselin was transferred to HCase 1:05-cv-00050-PB Document 11 Filed 02/03/06 Page 3 of 10
3Gosselin alleges that an order of this Court required the

NHDOC to have an operational residential mental health treatment

facility by July of 2003. I cannot locate any such Order of this

Court. Even if such an Order existed, however, Gosselin has not

demonstrated that he has any right to be housed in a particular

unit, so further inquiry into this issue is unnecessary.

4

Building at NHSP, which Gosselin describes as a tense,

overcrowded, and violent facility. Gosselin complained about his

placement in H-Building and was transferred to the Northern New

Hampshire Correctional Facility (“NCF”). Gosselin remained

housed at NCF at the time his amended complaint was filed. 

Gosselin alleges generally that his serious mental illness

prevents him from “functioning adequately” outside of a rarified

environment. Gosselin asserts that his continuous housing

transfers have rendered him unable to function as they have

rendered him unable to obtain the maximum positive effect of his

psychopharmaceutical course of treatment. Accordingly, Gosselin

has repeatedly requested transfer to a “Residential Treatment

Unit” that Gosselin alleges the NHDOC was court-ordered to

maintain in 2003.3 Gosselin’s housing requests took the form of

a request to stop the transfers as a “reasonable accommodation”

of his mental illness under the ADA. Gosselin sent requests for

a “reasonable accommodation” to LaCasse, Cattell, and Curry in

November and December of 2004. All of his requests were denied. 

Case 1:05-cv-00050-PB Document 11 Filed 02/03/06 Page 4 of 10
5

Before his transfer to NCF, Gosselin requested to remain at

the NHSP so that he could be closely monitored by the Mental

Health Unit there. In January of 2005, however, after he

complained of the behavior of NHSP staff, Gosselin was moved to

NCF. Gosselin then requested that his mental condition be

closely monitored by the Mental Health Unit, alleging, again,

generally, that he was receiving clinically inappropriate

treatment of his mental illness at the NCF. Specifically,

Gosselin alleged, and alleges in his complaint, that he is unable

to function adequately without a safe housing environment, he is

not able to obtain more effective psychopharmaceutical treatment

due to his constant moves, and that he is unable to participate

in and attend a variety of programs offered by the NHDOC,

including yoga and other recreational activities and religious

services. 

Discussion

1. ADA Claim

Gosselin was previously directed to amend his complaint to

demonstrate that he was able to state a claim under the ADA upon

which relief might be granted. In my Order, I set out the

elements necessary to state a successful ADA claim, as follows:

Case 1:05-cv-00050-PB Document 11 Filed 02/03/06 Page 5 of 10
6

Title II of the ADA 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. Pursuant to the plain language 

of Title II, a plaintiff 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). 

See Order of May 19, 2005 at *5-6 (document no. 4). While

Gosselin now alleges a specific mental health diagnosis and that

he was denied access to yoga, religious services and recreational

activities as a result of his housing transfers, he has still not

stated any facts to support a conclusion that he was excluded

from that programming in a discriminatory fashion because of his

mental disability. To date, the only reason presented in either

complaint for Gosselin’s housing transfers was LaCasse’s

indication that Gosselin’s own behavior caused him to be

transferred. 

2. 42 U.S.C. § 1983 Claims

A. Right to Particular Housing

Prison inmates do not have any liberty interest in where

Case 1:05-cv-00050-PB Document 11 Filed 02/03/06 Page 6 of 10
7

they are housed, and transfers within the prison are well within

the discretion of the NHSP and are not protected by state or

constitutional law. See Olim v. Wakinekona, 461 U.S. 238, 244

(1983) (citing Meachum v. Fano, 427 U.S. 215 (1976), and Montanye

v. Haymes, 427 U.S. 236 (1976), cert. denied, 431 U.S. 967

(1977), to support the conclusion that prisoners have no liberty

interest protecting them from housing transfers). In addition to

the fact that the prison cannot house Gosselin in a residential

treatment unit that does not exist, the prison has no obligation

to house Gosselin in a unit that is geographically close to the

mental health unit. 

B. Right to Adequate Medical and Mental Health Care

Liberally construing the complaint, Gosselin has attempted

to state a claim for inadequate mental health care because he was

not housed in a residential treatment unit or in a place where he

could be closely monitored by the NHSP’s mental health unit. The

Eighth Amendment protects prison inmates from prison officials

acting with deliberate indifference to their serious medical

needs. See Farmer v. Brennan, 511 U.S. 825, 831 (1994). To

assert a viable cause of action for inadequate medical care, an

inmate must first state facts sufficient to allege that the

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8

plaintiff has a serious medical need for which adequate care has

not been provided. Farmer, 511 U.S. at 831; Rhodes v. Chapman,

452 U.S. 337 (1981); 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. Id. 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

Mahan v. Plymouth County House of Corr., 64 F.3d 14, 18 (1st Cir.

1995) (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’s

guarantee of adequate medical care applies to both mental health

and physical health needs. Torraco v. Maloney, 923 F.2d 231, 234

(1st Cir. 1991). 

“Adequate medical care” is treatment by qualified medical

personnel who provide services that are of a quality acceptable

when measured by prudent professional standards in the community,

Case 1:05-cv-00050-PB Document 11 Filed 02/03/06 Page 8 of 10
9

tailored to an inmate’s particular medical needs, and that are

based on medical considerations. 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

relevant to whether or not prison officials provided inadequate

care with a deliberately indifferent mental state. Wilson v.

Seiter, 501 U.S. 294, 302 (1991). 

In this case, accepting all of Gosselin’s allegations as

true, Gosselin has alleged that he has a serious mental health

diagnosis for which treatment is required, and that the NHDOC has

recognized his need for treatment by placing and keeping him on

psychopharmaceutical medications. Although Gosselin indicates

that he would prefer to be in residential treatment and that he

is not receiving the maximum benefit of medication, he has not

alleged that any employee of the NHDOC has denied him access to

treatment for his known serious mental health needs or that he is

Case 1:05-cv-00050-PB Document 11 Filed 02/03/06 Page 9 of 10
10

constitutionally entitled to a different course of treatment than

what he has been placed on. Gosselin’s desire to be treated in a

different environment in order to receive a greater benefit from

his medication, even if reasonable, is not mandated by the Eighth

Amendment.

Conclusion

For the foregoing reasons, I find that Gosselin has failed

to state a claim upon which relief might be granted. 

Accordingly, I recommend that this action be dismissed. 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: February 3, 2006

cc: John J. Gosselin, pro se

Case 1:05-cv-00050-PB Document 11 Filed 02/03/06 Page 10 of 10