1Miner has named the following defendants to this action:

GCDC Superintendent Glenn Libby (“Libby”), GCDC Corporal Diane

Arsenault (“Arsenault”), GCDC Officer Jason Reed (“Reed”), GCDC

Officer Michael Dunn (“Dunn”), GCDC Captain Roland Lafond

(“Lafond”), and the Grafton County Commissioners, who are not

individually identified.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Stephen Miner

v. Civil No. 06-cv-242-JD

Glenn Libby, Superintendent,

Grafton County Department of

Corrections, et al.

REPORT AND RECOMMENDATION

Proceeding pro se, Stephen Miner (“Miner” or “plaintiff”)

has filed this action pursuant to 42 U.S.C. § 1983 and Title II

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

12132, et seq., against employees of the Grafton County

Department of Corrections (“GCDC”) and the Grafton County

Commissioners.1 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;

United States District Court for the District of New Hampshire

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

direct, in an Order issued simultaneously with this Report and

Recommendation, that the ADA, Equal Protection, conditions of

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 1 of 24
2

confinement, deficient disciplinary hearing due process, and

unreasonable strip search claims proceed and that defendants

Libby, Lafond, Reed, and Dunn be served with this action. I

recommend that the claim alleging retaliatory punishment as well

as defendants Arsenault and the Grafton County Commissioners be

dismissed from 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 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

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 2 of 24
3The facts offered by Miner in support of the claims in this

action were set out in a narrative that was not entirely

cohesive. Accordingly, I have construed the allegations in the

complaint liberally to ensure that all of the relevant facts

presented by Miner were considered in this review.

4Miner has been transferred to the New Hampshire State

Prison since the filing of his complaint.

3

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

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 C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background3

Stephen Miner filed this action on July 3, 2006, while he

was an inmate in the custody of the GCDC.4 Miner suffers from

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 3 of 24
4

significant physical disabilities which require that he make use

of a walking cane and an orthopedic shoe. Specifically, Miner

states that he does not have a right hip joint, and that his

right leg is four inches shorter than his left leg. Miner

asserts that he requires a handicapped-equipped living space in

order to fully accommodate his disability.

Miner alleges that on June 1, 2006, he was removed from

general population at the GCDC and placed in a small cell in

“administrative segregation.” This move was made at the

direction of defendant Lafond. Miner remained in administrative

segregation for five days, during which he was held in lockup

continuously, without any out-of-cell time, and was denied soap,

toothpaste, a toothbrush, a comb or a shower. On June 4, 2006,

Miner states that he was moved to the punitive housing area of

the GCDC for no reason. The following day, Lafond took Miner’s

cane. Miner was advised that he would only be released from

twenty-four hour a day lockup if he gave up his cane, although he

needs it to walk. Miner states that due to this pressure, he did

relinquish his cane. Miner states that approximately one week

later, his orthopedic shoe was also disallowed.

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 4 of 24
5

On June 5, 2006, Miner asked defendant Dunn if he could take

a shower and was told his ability to shower would depend on his

attitude. Dunn did not allow Miner to shower or provide Miner

with any hygiene items. On that date, Miner was brought to

Lafond’s office for an interview. Although Lafond asserted his

belief that Miner was in a handicapped cell, Miner states that in

fact he was not in a handicapped-equipped cell and that GCDC, due

to the age of the incarcerative facility, did not provide Miner

with adequate accommodations for his disability. As a result,

Miner requested transfer to the better-equipped New Hampshire

State Prison. Lafond accused Miner of being disrespectful in

Lafond’s office, and imposed segregation as punishment on that

basis without a further hearing.

While he was in segregation, a nurse came to Miner’s cell to

dispense Miner’s medication. Miner advised the corrections

officer present, defendant Reed, that he was unable to get

himself to the cell door because his walking cane and orthopedic

shoe had been taken away from him. Reed advised Miner that he

would have to crawl along the floor to the cell door in order to

receive his medication. Miner did so and suffered extreme pain

as a result.

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 5 of 24
5The complaint is silent as to what occurred on June 13 to

provoke disciplinary processes or what disciplinary charges were

brought on June 15.

6

On June 15, 2006, Miner was given a disciplinary hearing in

Lafond’s office for various rule infractions that Miner was

alleged to have committed on June 13, 2006.5 Lafond advised

Miner that in determining Miner’s guilt, Lafond would consider a

prior incident where Miner threw urine at defendant Arsenault. 

Miner claims that the urine-throwing incident never happened, and

that he was never given a disciplinary write-up for a urinethrowing incident where he would have the opportunity to contest

the allegations. Miner alleges that as a result he was punished

for incidents on June 13 based on false accusations without the

opportunity to defend himself. Miner also alleges that at the

June 15 disciplinary hearing, Lafond denied him the opportunity

to cross-examine Arsenault, who was the complaining officer in

the disciplinary matter. Miner was also prohibited from calling

two of his own witnesses. At the hearing, Miner complained that

Lafond’s role as sole judicial officer presiding over the

disciplinary matter denied Miner an impartial tribunal because of

Lafond’s personal relationship with Arsenault. On June 16, 2006,

Miner received the written results for his June 15 disciplinary

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 6 of 24
7

hearing. He was found guilty and sanctioned with two consecutive

seven day terms in lock-up.

At the time he filed his complaint, Miner was still being

held in the punitive segregation housing unit of the GCDC. Miner

alleges that he was in punitive segregation in retaliation for an

earlier lawsuit that he had brought against a former employer of

defendant Libby. Miner’s retaliation allegation is based on the

fact that Libby told Miner that he remembered Miner’s prior

lawsuit. Miner asserts that Libby’s knowledge of Miner’s prior

suit caused Libby to retaliate against Miner, using cell

conditions that were not amenable to Miner’s physical disability

as a vehicle to accomplish the retaliation.

Miner claims that at 8:30 p.m. on June 15, 2006, he was

subjected to a strip search at or in his cell. Miner claims that

nine hours later, on June 16, 2006 at 5:30 a.m., Reed came to

Miner’s cell door to conduct another full body strip search. 

Miner asserts that he had not been out of his cell during the

nine hours between searches and had no opportunity to obtain

contraband during that time. Miner claims, therevfore, that the

second strip search was unreasonable. Miner also objects to the

fact that Reed asked him to step out of the cell for the second

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 7 of 24
6The claims as identified herein will be considered for all

purposes to be the claims raised in the complaint. If Miner

disagrees with this identification of the claims, he must do so

by proper objection to this Report and Recommendation or by

properly moving to amend his complaint.

8

search, but denied Miner the use of his orthopedic shoe, and

instead forced him to crawl to the door to be searched.

Miner alleges that he attempted to resolve these issues by

discussing them with officials at the GCDC. Specifically, Miner

states that prior to initiating this action, he met on three

occasions with Libby and also on at least two occasions with

Lafond, but did not receive any satisfactory response from either

official.

Discussion6

1. ADA Claim

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

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 8 of 24
9

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). 

Title II of the ADA applies to inmates in correctional

facilities. See Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206,

209-10 (1998). “[P]risons 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.’)” Id. at 210. 

Miner alleges that he has a disabling physical condition,

and that being housed in cells that are not handicapped-equipped,

being denied the use of his cane and orthopedic shoe, and being

denied adequate accommodation for his disability has resulted in

the denial of benefits, services or programs to him to which he

is entitled under the ADA. While the complaint is somewhat scant

as to what specific benefits, services, or programs were denied

to Miner, I find that his allegations that he was not given an

adequately equipped cell or the equipment necessary to even walk

to get his medication or to accommodate officers seeking to

search his cell, and that he was held in lockup until he agreed

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 9 of 24
10

to relinquish his cane, give rise to a cognizable claim under the

ADA. In an Order issued simultaneously with this Report and

Recommendation, I will direct that the claim of discrimination

under the ADA be served on Lafond, Dunn, and Reed as well as

Libby, who is responsible for assuring that the GCDC

incarcerative facility is adequately equipped to meet the needs

of its inmates.

2. Section 1983 Claims

A. Equal Protection Claim

State officials “are not required by the Fourteenth

Amendment to make special accommodations for the disabled, so

long as their actions towards such individuals are rational. . .

. If special accommodations for the disabled are to be required,

they have to come from positive law and not through the Equal

Protection Clause.” Bd. of Trustees of Univ. of Ala. v. Garrett,

531 U.S. 356, 367-68 (2001); Kimel v. Fla. Bd. of Regents, 528

U.S. 62, 86 (2000). As the ADA is such a positive law, any

protection against discrimination that is based on anything aside

from the irrational relationship between the challenged actions

of the defendants and a rational penological objective arises

under the statute, rather than under the Equal Protection clause. 

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 10 of 24
11

To the extent, however, that Miner alleges that the impositions

placed upon him as a result of his disability were not rationally

related to a proper penological objective, those claims might be

viable under the Equal Protection clause. 

Here, Miner alleges that he was denied a cane and orthopedic

shoe that he needed to walk, and was made to crawl to get

prescribed medication or to comply with an officer’s order to

leave his cell. I find that this allegation can be construed to

describe irrational actions on the part of defendants Lafond,

Reed, Libby and Dunn, and I will direct that the Equal Protection

claim be served upon them in the Order issued simultaneously with

this Report and Recommendation.

B. Miner’s Incarcerative Status

It is unclear from his complaint whether Miner was a

pretrial detainee or sentenced inmate when the challenged events

occurred. Because he was held in a county correctional facility

and then transferred to the State Prison, however, I will assume

for purposes of preliminary review that Miner was a pretrial

detainee at GCDC during the period complained of here. 

A pretrial detainee has a Fourteenth Amendment 

right to be free from punishment prior to 

conviction. While a pretrial detainee may be 

disciplined for a specific institutional infraction 

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 11 of 24
12

committed during the period of his detention, the 

discipline imposed must be roughly proportionate to 

the gravity of the infraction. An arbitrary, or 

disproportionate sanction, or one that furthers no 

legitimate penological objective, constitutes 

punishment (and, thus, is proscribed by the 

Fourteenth Amendment).

Surprenant v. Rivas, 424 F.3d 5, 13 (1st Cir. 2005) (citing Bell

v. Wolfish, 441 U.S. 520, 535, 538-9 (1979) and Collazo-Leon v.

U.S. Bureau of Prisons, 51 F.3d 315, 318 (1st Cir. 1995)). 

Accordingly, I find that Miner’s complaints about prison life

raised under § 1983 arise under the Fourteenth Amendment. 

C. Conditions of Confinement

“A pretrial detainee’s claim that he has been subjected to

unconstitutional conditions of confinement implicates Fourteenth

Amendment liberty interests. . . . In order to establish a

constitutional violation, a plaintiff’s claim must meet both

objective and subjective criteria.” Surprenant, 424 F.3d at 18

(citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The

plaintiff must establish that the conditions of his confinement

deny him the minimal necessities required for civilized living

from an objective standpoint, and then must show that the

defendant was deliberately indifferent to the plaintiff’s health 

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 12 of 24
13

or safety in creating or allowing the challenged conditions. 

Surprenant, 424 F.3d at 18-19 (citations omitted). 

Here, Miner alleges that he was denied all access to hygiene

products and showers for a period of five days while he was

placed in administrative segregation. Further, he alleges that

he was intentionally moved to this unit by Lafond. Miner further

states that he specifically requested a shower and hygiene items

from Dunn, but was denied due to his “attitude.” Miner alleges

that he requested that Lafond place him in a handicapped-equipped

cell. Miner’s complaint also asserts that Lafond accused Miner

of being disrespectful during an interview, and that although

Miner was never given the opportunity to defend that accusation,

Lafond continued Miner’s placement in administrative segregation

as a punitive measure.

It may ultimately be determined that five days is not long

enough, under the circumstances of this case, to constitute a

constitutional deprivation, or that Miner’s alleged “attitude”

issues merited the actions taken by the defendants. At this

stage of the proceedings, however, I cannot definitively

determine that the deprivation of hygiene items and showers was

not punitive in nature, or that the deprivation was effected in

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 13 of 24
14

response to a specific infraction that occurred at the GCDC. 

Further, based on the facts alleged, it is possible that Miner

could demonstrate that the defendants to this claim possessed the

necessary deliberate indifference to Miner’s health and safety to

permit this claim to go forward. Accordingly, I will direct that

this claim be served on defendants Lafond and Dunn in an Order

issued simultaneously with this Report and Recommendation. 

D. Deficiency in Disciplinary Hearing

Miner alleges that he was denied due process of law on June

5 when Lafond denied him a hearing prior to punishing him, and in

the disciplinary proceedings held before Lafond on June 15, 2006

when he was judged and punished based on uncharged conduct,

without the benefit of cross-examination, without access to his

own witnesses, and without an impartial decisionmaker. 

Ordinarily, when a prisoner is subjected to disciplinary

sanction, he must prove that the sanction itself was so atypical

of the normal incidents of prison life, and imposed such a

hardship, that he was entitled to due process in order for the

sanction to be constitutionally effected. Sandin v. Conner, 515

U.S. 472, 483-84 (1995). Sandin, however, only applies to

convicted inmates who might expect a certain amount of punishment

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 14 of 24
15

as typical of the normal incidents of prison life. Pretrial

detainees, to the contrary, have a constitutionally-protected

liberty interest in avoiding any punishment. Surprenant, 424

F.3d at 17. In Wolff v. McDonnell, the Supreme Court identified

the due process requirements for a disciplinary hearing in a

prison. 418 U.S. 539, 564 (1974). Those requirements include

written notice of the charges at least twenty-four hours in

advance of the hearing, the ability to call witnesses and present

evidence, and that the hearing be presided over by an impartial

decisionmaker. Id. at 566, 570-71; Surprenant, 424 F.3d at 16.

Because Miner was at the GCDC as a pretrial detainee, he was

entitled to the protections of the due process clause if the

disciplinary sanction against him was at all punitive. Miner

alleges that he was sanctioned with fourteen days in punitive

lockup. Accordingly, I find that Miner was entitled to due

process protections as outlined by Wolff at his disciplinary

hearing. Miner has alleged that he was denied the opportunity to

confront the evidence against him, denied the ability to call

witnesses in his favor, and denied an impartial decisionmaker as

Lafond, the hearing officer in the matter, had an intimate

personal relationship with Arsenault, the complaining officer in

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 15 of 24
16

the disciplinary matter. Accordingly, I find that Miner has

sufficiently alleged the deprivation of procedural due process by

Lafond to allow this claim to proceed against him. Miner has

not, however, alleged Arsenault behaved improperly with regard to

the disciplinary charge or any of the other claims raised in

Miner’s complaint, and I therefore recommend that Arsenault be

dismissed from this action.

E. Unreasonable Strip Search

Miner claims that his right to be free from unreasonable

searches, as guaranteed by the Fourth Amendment, was violated by

the strip search to which he was subjected on June 16, 2006. 

Prison inmates do not shed all fundamental protections of the

Constitution upon incarceration, but retain those rights that are

not inconsistent with their prisoner status or with the

legitimate penological objectives of the corrections system. 

Wolff, 418 U.S. at 555. Regarding strip searches, pretrial

detainees retain their Fourth Amendment right to be protected

from unreasonable searches during their incarceration. Bell v.

Wolfish, 441 U.S. 520, 545 (1979). “However, those rights may be

subject to restrictions and limitations based on the fact of

confinement, the legitimate goals and policies of the penal

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 16 of 24
7The complaint does not reveal the offense for which Miner

is incarcerated, although his transfer to the New Hampshire State

Prison suggests that it was a felony. 

17

institution, and the need of the institution to maintain security

and internal order.” Roberts v. Rhode Island, 239 F.3d 107, 110

(1st Cir. 2001); Bell, 441 U.S. at 545-46. “‘When an

institutional restriction infringes a specific constitutional

guarantee,’--here, the Fourth Amendment right against

unreasonable searches,--‘the practice must be evaluated in the

light of the central objective of prison administration,

safeguarding institutional security.’” Roberts, 239 F.3d at 110;

quoting Bell, 442 U.S. at 546. In Bell, the Supreme Court

instructed lower courts examining prison strip searches to

“consider the scope of the particular intrusion, the manner in

which it is conducted, the justification for initiating it, and

the place in which it is conducted.” 441 U.S. at 559. The First

Circuit has held that in the context of prisoners held in local

jails for minor offenses7, “the Bell balance requires officers to

have a reasonable suspicion that a particular detainee harbors

contraband prior to conducting a strip or visual body cavity

search.” Roberts, 239 F.3d at 110, (citing Swain v. Spinney, 117

F.3d 1, 5 (1st Cir. 1997)). 

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 17 of 24
18

Applying the Bell balancing factors, I find that Miner’s

complaint sufficiently alleges the minimal facts necessary to

find that the strip search conducted on June 16 was unreasonable. 

The search does not appear to be based on a particularized

suspicion that Miner was in possession of contraband, as Miner

states that he was strip searched nine hours before, and had been

locked in his cell without access to any contraband in between

the searches. Further, Miner alleges that he was subjected to a

full body strip search, for which he had to crawl outside of his

cell because he was denied the use of a cane. Miner has,

therefore, successfully stated a claim against Reed for a

violation of his Fourth Amendment right to be free from

unreasonable searches and I will direct, in the Order issued

simultaneously with this Report and Recommendation, that this

claim be served on Reed.

F. Retaliation

Miner claims that Libby was responsible for his housing in

punitive segregation until the time of his transfer to the New

Hampshire State Prison. Miner’s sole factual assertion

supporting this claim, however, is that Libby told Miner that he

was aware of a prior lawsuit Miner had filed against someone

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 18 of 24
8The statute provides in relevant part:

Every person who, under color of any [state law] 

. . . subjects, or causes to be subjected, any 

citizen of the United States . . . to the 

deprivation of any rights, privileges, or 

immunities secured by the Constitution and the 

laws, shall be liable to that party injured in 

any action at law, . . .

42 U.S.C. § 1983.

19

else, because Libby was working for the defendant in that suit at

that time. The allegations set forth by Miner are insufficient

to allow this Court to infer any retaliatory intent at all, or

even to suggest some motivation on Libby’s part to retaliate

against Miner, in Miner’s continued placement in punitive

segregation. Accordingly, I recommend that this claim be

dismissed from this action.

3. Theories of Defendant Liability

A. Individual Liability

 42 U.S.C. § 1983 authorizes suits against state actors

operating to deprive citizens of their constitutional rights.8

Because I have found that Miner has alleged constitutional

violations against GCDC employees Lafond, Dunn, Reed, and Libby

sufficient to state a cause of action under § 1983, those 

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 19 of 24
20

individuals are proper defendants in this suit in their

individual capacities.

B. Municipal Liability

Miner has named the Grafton County Commissioners to this

action. This is another way of suing Grafton County. Under New

Hampshire law, counties, such as Grafton County, are considered

local governmental units. See N.H. Rev. Stat. Ann. (“RSA”) 507-

B:1 (1997) (defining “governmental unit” as “any political

subdivision within the state including any county, city, town . .

., but [not including] the state or any department or agency

thereof.”); see also RSA 23:1 (1988) (providing that “each county

is a body corporate for the purpose of being sued. . .”). 

Municipalities and local government entities are “persons” within

the meaning of § 1983. See Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 690 (1978). In order to maintain a claim against

Grafton County under 42 U.S.C. § 1983, however, the claim must be

grounded upon an unconstitutional municipal custom or practice

and two requirements must be met. “First, the custom or practice

must be attributable to the municipality, i.e., it must be ‘so

well settled and widespread that the policymaking officials of

the municipality can be said to have either actual or

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 20 of 24
21

constructive knowledge of it yet did nothing to end the

practice.’” Miller v. Kennebec County, 219 F.3d 8, 12 (1st Cir.

2000) (quoting Bordano v. Mcleod, 871 F.2d 1151, 1156 (1st Cir

1989)). Second, the custom must have been the cause of and “the

moving force” behind the deprivation of constitutional rights. 

Miller, 219 F.3d at 12. Because he has at this time failed to

allege that Grafton County engaged in a custom or policy of

allowing or enabling unconstitutional treatment of prisoners,

Miner fails to state a § 1983 claim against the Grafton County

Commissioners. Accordingly, I recommend that the Grafton County

Commissioners be dismissed as defendants to this action, without

prejudice to Miner’s ability to renew this claim if he is able to

allege additional facts that would subject Grafton County to

liability for this action.

C. Supervisory Liability

Miner has named Libby in his capacity as the GCDC

Superintendent as a defendant to this suit. Because he does not

allege that Libby was present at or directly involved in the

incidents alleged, I assume that Miner intends to sue Libby in

his supervisory capacity at the GCDC. “Supervisory liability

under § 1983 cannot be predicated on a respondeat theory, but

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 21 of 24
22

only on the basis of the supervisor’s own acts or omissions.” 

Aponte Matos v. Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998)

(internal citations omitted). A supervisor must be “either a

primary actor involved in, or a prime mover behind, the

underlying violation.” Camilo-Robles v. Zapata, 175 F.3d 41, 43-

44 (1st Cir. 1999). There must be “an affirmative link, whether

through direct participation or through conduct that amounts to

condonation or tacit authorization” to the violation alleged. 

Id. at 44. Here, Miner’s claims suffice to allege that the

violations and behavior he complains of were committed with at

least the condonation or tacit authorization of Libby because

Miner alleges that he met with Libby to discuss the problems on

several occasions, and yet Libby took no action to assist him in

resolving the constitutional issues presented here. For purposes

of preliminary review, I find that Miner’s complaint states the

minimum facts necessary to allege that Libby was aware of the

conduct of the officers at GCDC and the conditions present in the

punitive and administrative segregation unit, but refused to

correct them. I find therefore that Miner has sufficiently

stated a claim against Libby in his supervisory capacity to allow

this action to proceed against him.

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 22 of 24
23

4. Motion for Appointed Counsel

Miner has requested that this Court appoint counsel to

represent him in this case. There is no absolute constitutional

right to free legal representation in a civil case. Bemis v.

Kelley, 857 F.2d 14, 15 (1st Cir. 1988). Rather, appointment of

counsel in a civil case is left to the discretion of the court. 

See 28 U.S.C. § 1915(d). An indigent litigant must demonstrate

that exceptional circumstances exist to justify appointment of

counsel, such that without counsel the litigant most likely would

be unable to obtain due process of the law. DesRosiers v. Moran,

949 F.2d 15, 23 (1st Cir. 1991); Cookish v. Cunningham, 787 F.2d

1, 2 (1st Cir. 1986) (per curiam). 

At this time, plaintiff has failed to establish the

existence of any exceptional circumstances that would endanger

his ability to obtain due process of law in this matter. The

plaintiff’s motion for counsel is therefore denied without

prejudice to refiling in the future should circumstances warrant.

Conclusion

In an Order issued simultaneously with this Report and

Recommendation, I direct that the ADA, Equal Protection,

conditions of confinement, deficiency in disciplinary hearing due

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 23 of 24
24

process, and unreasonable strip search claims be served against

defendants Libby, Lafond, Reed and Dunn. I recommend that the

retaliation claim and defendants Arsenault and the Grafton County

Commissioners be dismissed from this action for the reasons

discussed herein. See U.S.C. § 1915A(b)(1). 

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 Unauth. 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: November 8, 2006

cc: Stephen Miner, pro se

Case 1:06-cv-00242-JD Document 11 Filed 11/08/06 Page 24 of 24