1At this stage of the proceedings Towle has not requested

preliminary injunctive relief.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Robert V. Towle

v. Civil No. 06-cv-464-PB

Commissioner, New Hampshire

Department of Corrections, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Robert V. Towle brings this civil rights

action, pursuant to 42 U.S.C. § 1983, alleging violations of his

rights under the First, Eighth and Fourteenth Amendments to the

United States Constitution (document no. 1).1 Named as

defendants are William Wrenn, Commissioner of the New Hampshire

Department of Corrections (“NHDOC”), Bruce Cattell, Warden of the

New Hampshire State Prison (“NHSP”) and Greg Crompton, Deputy

Warden of the NHSP.

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

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2

(“LR”) 4.3(d)(2). For the reasons stated below, I conclude that

Towle has stated a First Amendment claim against Wrenn, Cattell

and Crompton. I recommend dismissal of all remaining claims.

Standard of Review

In reviewing a pro se complaint, this Court must construe

the pleadings liberally and in favor of that party. 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 a plaintiff and

the inferences reasonably drawn therefrom must be accepted as

true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)

(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 Towle’s complaint.

Background

Towle is currently incarcerated at the NHSP. He brings this

action alleging that Wrenn, Cattell and Crompton imposed

restrictions on his inmate visitation privileges in violation of

his First Amendment right to intimate association and his Eighth

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2NHDOC Policy and Procedure Directive (“PPD”) 7.09 IV, I(1) 

provides:

Inmates must request that a prospective

visitor be placed on the approved visitor

list at least 14 days prior to that person

visiting. 

NHDOC PPD 7.09 IV, I(4) provides:

Potential visitors with criminal records or

who are on probation/parole will not be

granted visiting privileges. A direct family

member (father, mother, sister, brother,

child, spouse, aunts, uncles, grandparents,

sister-in-law or brother-in-law) of an inmate

who is also on probation/parole may be

authorized to visit only with the written

approval of the Warden and the supervising

PPO. Potential visitors with drug

convictions within the last five years and/or

confinement for any offense within the last

five years will be excluded. Exception to

this policy may be made by written appeal to

the Warden. Any articulable risk to security

will exclude a visitor.

NHDOC PPD 7.09 IV, I(5) provides:

A visitor cannot appear on more than one

inmate’s approved visitor list unless the

3

Amendment right to be free from cruel and unusual punishment. He

further alleges that Crompton responded to his administrative

grievance filed with Wrenn, in violation of his Fourteenth

Amendment right to due process. 

This action stems from NHSP regulations2 that allegedly

Case 1:06-cv-00464-JL Document 4 Filed 02/05/07 Page 3 of 15
inmates are related to each other and the

visitor is under the immediate family

description. Immediate family for the

purpose of this policy means, mother, father,

children, spouse, brother, sister,

grandparents, aunts, uncles, sister-in-law

and brother-in-law).

4

exclude Towle’s wife, Katie Wilmot, and his stepson, Cooper, from

his visitor list. As a result of this exclusion, Towle allegedly

has been denied visits with Wilmot, Cooper and Carter. Carter is

the biological child of Towle and Wilmot. Cooper is the

biological child of Wilmot and Kerry Kidd, another inmate

currently incarcerated at the NHSP. On July, 12, 2006, Wilmot

was denied approval to be placed on Towle’s visitor list because

of her criminal history. The record reveals that Wilmot was

convicted of theft by unauthorized taking from Wal-Mart and was

sentenced to two years probation, restitution and a ten-year

window of good behavior. There is no indication that she was

convicted of any drug offense or subjected to any period of

confinement. 

Towle filed an appeal with Cattell in which he identified

Wilmot as his wife and requested that she and Cooper be placed on

his visitor list. Cattell denied the appeal on August 28, 2006,

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5

stating that Wilmot’s felony conviction was only three years old

and that her marital status was irrelevant. Cattell permitted

Carter to visit Towle under two conditions: (1) that Carter be

accompanied by an approved adult; and (2) that Wilmot provide

written and notarized permission for the child to visit. Cattell

advised Towle to maintain his relationship with Wilmot through

letters and collect telephone calls.

On September 3, 2006, Towle filed an appeal with Wrenn, the

Commissioner of the NHDOC, in which he requested that Wilmot and

Cooper be placed on his visitor list and that an exception be

made to NHSP policy because the benefit of their visit would

outweigh any security risk. Crompton denied the request on

September 13, 2006, explaining that Wilmot’s “conviction does not

meet the [five-year] requirement.” Towle filed an appeal with

Crompton on September 28, 2006, stating that the five-year

requirement under PPD 7.09, I(4) should not apply to Wilmot

because she was neither convicted of a drug offense nor confined.

Towle further stated that Crompton violated his right to due

process by responding to a grievance that was filed in a sealed

envelope and directed to Wrenn. Crompton responded on October 9,

2006, explaining that he had “delegated authority to respond to

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6

all Commissioner level appeals and grievances” and again denied

Towle’s appeal.

In a letter of October 13, 2006 addressed to Wrenn, Wilmot

explained her criminal history and essentially reiterated the

requests made by Towle. She added that her son Cooper was

excluded from Towle’s visitor list because of his placement on

Kerry Kidd’s visitor list. According to Wilmot, Towle “has

played quite a significant role in [Cooper’s] life since birth.” 

Crompton responded on October 30, 2006, stating that “Warden

Cattell’s letter of August 28, 2006 stands.”

Towle filed another appeal with Cattell on November 4, 2006,

reiterating his argument that the five-year requirement under PPD

7.09, I(4) should not apply to Wilmot because she was never

convicted of a drug offense or subjected to a period of

confinement. Cattell responded on November 8, 2006, explaining

that PPD 7.09, I(4) “excludes two categories but it does not

indicate that people who were convicted of other felonies or

received suspended sentences will be approved as visitors. When

I responded to you on 8/28/06 I was aware of PPD 7.09. What I

wrote to you then still stands today.” Towle filed an appeal

with Crompton on November 8, 2006, reiterating that Crompton

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7

lacked authority to respond to his appeal and citing N.H. Rev.

Stat. Ann. (“RSA”) § 21-H:8 (setting forth the powers and duties

of the NHDOC Commissioner, including the power to “delegate

authority to subordinates as the commissioner deems necessary and

appropriate, except that rulemaking authority shall not be

delegated). Crompton denied his request on November 16, 2006.

Towle now brings this Section 1983 action, alleging that

defendants’ acts and omissions rise to the level of

constitutional deprivations under the First, Eighth and

Fourteenth Amendments.

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);

accord Conn v. Gabbert, 526 U.S. 286, 290 (1999). 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 Towle’s Section 1983 action is

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8

that defendants violated his First Amendment right to intimate

association, his Eighth Amendment right to be free from cruel and

unusual punishment and his Fourteenth Amendment right to due

process.

A. First Amendment Claim

Towle alleges that Wrenn, Cattell and Crompton imposed

restrictions on his inmate visitation privileges in violation of

his First Amendment right to intimate association.

“Lawful incarceration brings about the necessary withdrawal

or limitation of many privileges and rights, a retraction

justified by the considerations underlying our penal system.” 

Price v. Johnston, 334 U.S. 266, 285 (1948). However, 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). In Overton v. Bazzetta, 539 U.S. 126, 133-

34 (2003), the Supreme Court addressed the issue of whether

restrictions on an inmate’s visitation privileges violated the

First, Eighth and Fourteenth Amendments. The Court stated “[w]e

do not hold, and we do not imply, that any right to intimate

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9

association is altogether terminated by incarceration or is

always irrelevant to claims made by prisoners.” Id. at 131. 

Thus, the Court “assumed that prisoners retain some right of

intimate association while incarcerated.” King v. Frank, 328 F.

Supp. 2d 940, 945 (W.D. Wis. 2004)(citing Overton, 539 U.S. at

126). 

In determining whether a regulation affecting a prisoner’s

constitutional right survives a constitutional challenge, the

Court stated that four factors are relevant:

“whether the regulation has a ‘valid, rational

connection’ to a legitimate governmental interest;

whether alternative means are open to inmates to

exercise the asserted right; what impact an

accommodation of the right would have on guards and

inmates and prison resources; and whether there are

‘ready alternatives’ to the regulation.”

See Overton, 539 U.S. at 132 (quoting Turner v. Safely, 482 U.S.

78, 89-91 (1987)). 

In this action, Towle appears to allege that the

restrictions imposed on his visitation privileges are

unreasonable and in contravention of NHSP policy. Construed

liberally, the complaint alleges that defendants have misapplied 

NHDOC PPD 7.09 IV, I(4), which provides in relevant part:

Potential visitors with criminal records or who are on

probation/parole will not be granted visiting

Case 1:06-cv-00464-JL Document 4 Filed 02/05/07 Page 9 of 15
10

privileges. A direct family member . . . of an inmate

who is also on probation/parole may be authorized to

visit only with the written approval of the Warden and

the supervising PPO. Potential visitors with drug

convictions within the last five years and/or

confinement for any offense within the last five years

will be excluded. Exception to this policy may be made

by written appeal to the Warden. Any articulable risk

to security will exclude a visitor.

Defendants allegedly have excluded Wilmot solely on the

basis that she failed to meet the five-year requirement under PPD

7.09, even though she was never convicted of a drug offense or

subjected to a period of confinement. Even assuming that

defendants properly applied PPD 7.09, they have not identified a

legitimate governmental interest in banning Wilmot on the basis

of her theft conviction. Nor have they identified any

articulable risk in placing her on Towle’s visitor list. While

defendants have suggested alternative means to the regulation,

namely that Towle communicate with Wilmot by telephone and mail,

Towle contends that the alternatives are insufficient for

maintaining his family bonds with his wife, son and stepson. 

Accepting Towle’s allegations as true, I cannot conclude that

defendants have properly applied NHSP policy or identified a

legitimate penological reason for restricting Towle’s visitation

privileges. Accordingly, I conclude that Towle has alleged

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sufficient facts to a state cognizable First Amendment claim

against Wrenn, Cattell and Crompton.

B. Eighth Amendment Claim

Towle alleges that the restrictions imposed on his

visitation privileges constitute a cruel and unusual condition of

confinement in violation of his Eighth Amendment rights.

In Overton, the Supreme Court held that the withdrawal of

visitation privileges for a limited period of time does not

create inhumane prison conditions, deprive inmates of basic

necessities, or fail to protect their health or safety; nor did

the temporary withdrawal of such privileges involve the

infliction of pain or injury, or deliberate indifference to the

risk that it might occur. See Overton, 539 U.S. at 137

(citations omitted). However, “[i]f the withdrawal of all

visitation privileges were permanent or for a much longer period,

or if it were applied in an arbitrary manner to a particular

inmate, the case would present different considerations.” Id.

Here, Towle alleges that defendants have denied visitation

rights only to his wife and stepson. He does not allege a total

denial of visits, such as denial of visitation to all family

members. In addition, the record indicates that the ban is

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12

imposed for a five-year period that will expire in less than one

year. Because the restrictions imposed on Towle’s visitation

privileges do not constitute a complete and permanent ban and do

not appear to be arbitrarily imposed, I find that he has failed

to allege an Eighth Amendment claim. While the restrictions make

his confinement more difficult to bear, they do not fall below

the standards mandated by the Eighth Amendment. See Overton, 539

U.S. at 136-37. Accordingly, I conclude that Towle has failed to

state a cognizable Eighth Amendment claim and recommend that this

claim be dismissed in its entirety.

C. Fourteenth Amendment Claim

Towle alleges that Crompton denied him due process in

violation of his Fourteenth Amendment rights. With regard to

Towle’s September 3, 2006 appeal filed with Wrenn, Crompton

allegedly “intercepted and prevented the appeal from occurring,

thereby denying [Towle] his procedural due process.”

The record reveals that Wrenn delegated authority to

Crompton to rule on administrative appeals and grievances. Thus,

Crompton’s subsequent review and denial of Towle’s appeal does

not rise to the level of a Fourteenth Amendment due process

violation. “While the filing of grievances is constitutionally

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13

protected, the manner in which grievance investigations are

conducted do not create a protected liberty interest.” Odom v.

Poirier, 99-Civ.-4933 (GBD), 2004 WL 2884409 at *10 (S.D.N.Y.

Dec. 10, 2004) (citing Torres v. Mazzuca, 246 F. Supp. 2d 334,

342 (S.D.N.Y. 2003) (“[p]rison grievance procedures do not confer

any substantive right upon an inmate requiring the procedural

protections envisioned by the Fourteenth Amendment.”). Nor does

an inmate have a federally protected right to have his grievances

resolved to his satisfaction. Geiger v. Jowers, 404 F.3d 371,

374 (5th Cir. 2005)(prisoner had no federally protected interest

in having grievances resolved to his satisfaction). 

Here, Towle does not allege that defendants denied him the

opportunity to file an appeal or proceed through the prison’s

internal grievance system. Instead, he merely alleges that

Crompton, rather than Wrenn, reviewed his appeal and issued an

adverse ruling. Towle’s dissatisfaction with Crompton’s review

of his appeal and the adverse ruling do not constitute a liberty

interest protected by the Fourteenth Amendment. Accordingly, I

conclude that Towle has failed to state a cognizable due process

claim under the Fourteenth Amendment and recommend dismissal of

this claim in its entirety.

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II. Official Capacity

Construed liberally, the complaint seeks prospective

injunctive relief, and reimbursement of fees associated with

Towle’s complaint, for wrongs committed by the Wrenn, Cattell and

Crompton as state actors in their official capacities. 

It is well-settled that Eleventh Amendment immunity bars a

federal court from awarding monetary damages against state

officers sued in their official capacities. See Redondo-Borges

v. United States HUD, 421 F.3d 1, 7 (1st Cir. 2005). However,

Eleventh Amendment immunity does not bar claims for prospective

injunctive relief against state officers in their official

capacities. Id. “Nor does that doctrine bar relief (whether in

the form of money damages or an injunction) against [state

officers] in their individual capacities. Id. (citations

omitted). Thus, to the extent Towle seeks prospective injunctive

relief against defendants in their official capacities, I

conclude that his claims are not barred under the Eleventh

Amendment.

Conclusion

For the reasons stated above, I conclude that Towle has

stated a First Amendment claim against Wrenn, Cattell and

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15

Crompton. I recommend dismissal of all remaining claims. 

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 5, 2007

cc: Robert V. Towle, pro se

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