1Boulanger names the following defendants to this action:

Harley G. Lappin, Director, Federal Bureau of Prisons, Robert

Gilbert, Director, United States Marshal Service for the District

of New Hampshire, J. Reaster, Director, Strafford County

Department of Corrections (“SCDC”), SCDC Superintendent Warren

Dowaliby, SCDC Capt. D. Rollins, SCDC Classification Specialist

Linda Lee, SCDC Lt. Donna Roy, SCDC Lt. J. Sullivan, SCDC Sgt. J.

McPherson, SCDC Cpl. J. Pelkie.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gerard Boulanger

v. Civil No. 06-cv-308-JD

Harley G. Lappin, Director,

Federal Bureau of Prisons, et al.

REPORT AND RECOMMENDATION

Proceeding pro se, Gerard Boulanger has filed this action

pursuant to both Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 338 (1971), against employees of the Federal Bureau of

Prisons (“BOP”), and 42 U.S.C. § 1983, against employees of the

Strafford County Department of Corrections (“SCDC”).1 The

complaint is before me for preliminary review to determine

whether, among other things, it states any claim upon which

relief might be granted. See 28 U.S.C. § 1915A; United States

District Court for the District of New Hampshire Local Rule

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 1 of 23
2

(“LR”) 4.3(d)(2). For the reasons stated below, I direct, in an

Order issued simultaneously with this Report and Recommendation,

that the following claims: punitive segregated housing without a

hearing, excessive restraints, lack of exercise, and sleep

deprivation due to lights and searches in Boulanger’s cell,

proceed against defendants Gilbert, Dowaliby, Rollins, Lee, Roy,

Sullivan, McPherson, and Pelkie in their individual capacities. 

I recommend that the defendants Lappin and Reaster be dismissed

from this action. I further recommend that the claims alleging:

endangerment, inadequate law library, denial of access to the

courts, deprivation of property, and liability of the defendants

in their official capacities, 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

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 2 of 23
3

(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

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).

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 3 of 23
4

Background

On September 24, 2003, Boulanger, was incarcerated at the

Strafford County House of Corrections (“SCHC”) while awaiting

trial on federal criminal charges. From September of 2003 until

December of 2003, Boulanger was housed in the “all purpose room”

at the SCHC, which was a gym and recreation room that had been

converted to house a dozen inmates. In December of 2003,

Boulanger was moved to E-Pod, a 12-cell housing unit that held

twenty inmates. 

 In April of 2004, Boulanger alleges that he was moved to

administrative segregation, and was housed in a punitive housing

area. Boulanger asked a number of SCHC employees why he was

transferred to punitive housing and was given answers that,

although they conflicted with each other, were all based on

Boulanger’s allegedly maladaptive behavior at the SCHC. In any

event, Boulanger reports that at no time was he provided with a

classification hearing or disciplinary hearing regarding these or

any charges regarding his behavior during the time he was housed

at the SCHC. In July of 2004, Boulanger was moved to a new SCHC

building, but was still housed in administrative segregation,

which Boulanger describes as solitary confinement. Boulanger was

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 4 of 23
5

housed in these conditions until April 2005, the duration of his

stay at the SCHC. 

Boulanger alleges that during the entire eighteen month

period that he was held pretrial at the SCHC, he was denied the

ability to exercise either indoors or outdoors, to the detriment

of his physical well-being. Further, Boulanger alleges that for

the last six to twelve months of his incarceration, his cell

light was kept on twenty-four hours a day resulting in sleep

deprivation, and that during that time he was subjected to cell

searches every two hours, twenty-four hours a day. As a result,

Boulanger alleges that he suffered sleep deprivation which

negatively impacted his health. Again, Boulanger alleges that he

was not afforded any hearing prior to being housed in conditions

which resulted in punitive deprivation of sleep and humane living

conditions.

Boulanger also alleges that during the last six months of

his pretrial detention, he was kept chained to his bed in fourpoint restraints except for one hour a day when he was allowed

out of his cell on his housing pod. Boulanger says that his

hands and feet were even shackled together when he was eating. 

Boulanger names defendants Sullivan, McPherson and Pelkie as the

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 5 of 23
6

individuals responsible for excessively restraining him. 

Boulanger claims this restraint amounted to pretrial punishment

without the benefit of a due process hearing. Boulanger alleges

that his federal criminal defense attorney witnessed him in fourpoint restraints “under very dangerous circumstances” and as a

result filed complaints with SCHC Superintendent Dowaliby and the

United States Marshal’s Service, but no action was taken to

relieve Boulanger from the restraints.

Boulanger alleges that during his stay at the SCHC, he

repeatedly requested access to a law library or legal resources. 

Boulanger was told that the SCHC possessed only three books which

contained information defining criminal charges and punishment

but that did not cover any other legal subject. Boulanger

alleges that he was prejudiced in his federal criminal

prosecution by his lack of access to legal materials. 

Specifically, Boulanger alleges that he assented to certain

stipulations at trial that he would have opposed had he been able

to fully research the legal issues in his case.

Finally, Boulanger alleges that in October of 2004, his cell

was damaged and he was accused of causing the damage but not

afforded a hearing to make a determination of whether, in fact,

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 6 of 23
2The claims as identified herein will be considered for all

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

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.

7

he had caused the damage. At the same time, his legal materials

and various items of personal property were confiscated from his

cell and destroyed. 

Boulanger alleges that in addition to the complaints filed

by his attorney regarding the restraints, Boulanger also sought

redress for the challenged conditions of his confinement within

the SCDC hierarchy. Boulanger alleges that he filed numerous

request slips and grievances, as well as oral requests for

assistance with defendants Dowaliby, Rollins, Lee, Sullivan and

Ray, none of which resulted in any response or any improvement to

the conditions of his confinement. Boulanger alleges that

Sullivan told him that inmate grievance forms were routinely

thrown away without response. Boulanger also claims that he was

told that defendant Reaster was responsible for the treatment to

which Boulanger was subjected during his incarceration at SCHC.

Discussion2

1. Supervisory Liability

Boulanger has named a number of defendants to this action in

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3Plaintiff has not, to date, been very specific as to what

particular actions of each defendant resulted directly in the

alleged constitutional violations. I caution Boulanger that,

notwithstanding any finding I make of potential liability for

purposes of preliminary review, in order to ultimately prove his

claims against the defendants, he will likely have to show, with

specificity, the actions of each defendant that render him or her

responsible for the violations alleged.

8

their supervisory capacities. That is, Boulanger has alleged

generally that the defendants were in charge of supervising what

occurred in the SCHC or in a specific unit of the SCHC.3

Further, Boulanger has alleged that each of the defendants,

excepting Lappin and Reaster, was specifically advised by

Boulanger of his complaints regarding his conditions of

confinement but failed to remedy the problem. For most of the

defendants to this action, Boulanger has not alleged whether they

were present or directly involved in the violations alleged. 

Accordingly, I find that Boulanger, with a few exceptions where

he has been more specific, has attempted to allege that the

defendants are liable in their individual supervisory capacities

for the civil rights violations alleged. 

“Supervisory liability under § 1983 cannot be predicated on

a respondeat theory, but only on the basis of the supervisor’s

own acts or omissions.” Aponte Matos v. Toledo Davila, 135 F.3d

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 8 of 23
9

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, Boulanger’s claims suffice to allege that the

violations and behavior he complains of were committed with at

least the condonation or tacit authorization of defendants

Gilbert, Dowaliby, Rollins, Lee, Roy, Sullivan, McPherson, and

Pelkie, because Boulanger alleges that those defendants were

either advised of the conditions of Boulanger’s confinement or

were responsible, in their roles as supervisors, for those

conditions. 

Two of the named defendants, Lappin and Reaster, have not

been sufficiently alleged to have had supervisory roles over the

conditions complained of, or to have had any direct involvement

with Boulanger’s confinement, to warrant their remaining in this

case as defendants. As to Lappin, while Boulanger generally

alleges that he is responsible for the custody of federal

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 9 of 23
10

prisoners, it is not clear that his position as the director of

federal prisons gives him supervisory authority over conditions

at the SCHC for federal pretrial inmates. Boulanger also does

not allege that he ever complained to Lappin or otherwise made

Lappin aware of the conditions to which he was subjected at the

SCHC. Boulanger states that he was told that defendant Reaster,

the SCDC director, was “calling the shots” regarding Boulanger’s

treatment by SCHC officials. This assertion is insufficient to

create a nexus between any action or omission on the part of

Reaster and Boulanger’s subjection to unconstitutional conditions

of confinement to allow this action to proceed against Reaster at

this time. Accordingly, I recommend that Lappin and Reaster be

dismissed from this action.

2. Bivens Claims

Plaintiffs may seek redress from federal government

officials who violate their federal constitutional rights under

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 338 (1971),

which creates a cause of action against federal officers, acting

in their individual capacities, for constitutional violations. 

Boulanger alleges a Bivens action against defendant Gilbert, the

Director of the United States Marshal’s Service for the District

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 10 of 23
11

of New Hampshire. Boulanger alleges that Gilbert is responsible

for the civil rights violations alleged in his capacity as the

federal officer responsible for Boulanger’s treatment while he

was detained pretrial at the SCHC on federal charges.

3. Section 1983 Claims

42 U.S.C. § 1983 provides for a private cause of action

against individuals, acting pursuant to the authority of state

law, who violate the federal constitutional or statutory rights

of an individual. Section 1983 provides in relevant part:

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of 

the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or 

other proper proceeding for redress . . . . 

Boulanger asserts that Dowaliby, Rollins, Lee, Roy, Sullivan,

McPherson and Pelkie are responsible, in their roles as state

actors, for violations of his federal constitutional rights at

the SCHC. Accordingly, his claims against the SCDC defendants

arise under § 1983.

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 11 of 23
12

4. Boulanger’s Pretrial Status

Boulanger states that he was a pretrial detainee when the

challenged events occurred at the SCHC.

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 

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 Boulanger’s complaints about the

conditions of his confinement arise under the Fourteenth

Amendment. 

5. 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

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 12 of 23
13

(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 

or safety in creating or allowing the challenged conditions. 

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

A. Punitive Segregation

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

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

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 13 of 23
14

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. It goes without

saying that a pretrial prisoner who is denied any hearing at all

prior to the imposition of punishment was denied the due process

guaranteed by Wolff.

Boulanger alleges that he spent the majority of his eighteen

months at SCHC in punitive segregated confinement based on vague

allegations that he had committed an institutional offense. 

Boulanger alleges that he was placed into punitive housing

segregation based on his alleged bad behavior, but without ever

receiving a classification or disciplinary hearing where he would

be able to challenge the accusations resulting in his punitive

housing assignment. 

Boulanger’s pretrial status entitled him to a due process

hearing prior to the imposition of punitive housing or conditions

of confinement. Accordingly, I find that Boulanger has

sufficiently alleged the deprivation of procedural due process

protections by Lt. Roy, the SCHC disciplinary officer, and the

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 14 of 23
15

supervisory defendants at the SCHC, to allow this claim to

proceed against those defendants. 

B. Restraints

Boulanger alleges that defendants McPherson, Sullivan and

Pelkie were responsible for his being placed in four-point

restraints for twenty-three hours a day during the last six

months of his confinement, and for his being placed in excessive

restraints while he was eating during that six-month period. 

Boulanger states that this restraint system was punitive, and

imposed without a due process hearing, in violation of his

Fourteenth Amendment right not to be punished as a pretrial

detainee. Because, as discussed above, Boulanger had a right to

be free from punishment at the SCHC absent due process, I find

that he has stated a claim against defendants McPherson,

Sullivan, Pelkie, Gilbert, Dowaliby, and the other supervisory

defendants to this action for excessive and punitive restraints

in violation of the Fourteenth Amendment.

Boulanger also implies that the restraint system placed him

in danger because his attorney saw Boulanger restrained “under

very dangerous circumstances.” Boulanger has not elaborated or

provided any specific information regarding how he was placed in

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 15 of 23
16

danger by virtue of being restrained, and I recommend that any

claim Boulanger intended to raise for being placed into a

dangerous situation be dismissed as inadequately articulated.

C. Lack of Exercise

Boulanger alleges that during the eighteen months he was

housed at the SCHC he was denied any exercise at all. At most,

Boulanger states he was permitted to leave his cell for an hour a

day, but was not given any access to either indoor or outdoor

exercise space or facilities. As a result, Boulanger alleges

that his physical health suffered. Because it is possible that

Boulanger can allege that the denial of exercise for eighteen

months was an intolerable health hazard, see Surprenant, 424 F.3d

at 20-21, I find that he has stated a Fourteenth Amendment claim

for the denial of adequate exercise and, in an Order issued

simultaneously with this Report and Recommendation, I will direct

that the claim be served on the defendants to this action, in

their individual supervisory capacities.

D. Sleep Deprivation

Boulanger alleges that the conditions in which he was held

violated his constitutional right to humane conditions of

confinement because the lights in his cell were left on twentyCase 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 16 of 23
4Boulanger has only complained of the cell searches in the

context of the searches depriving him of sleep. Boulanger has

not articulated a Fourth Amendment challenge to the

reasonableness of the searches. Even if he had, however, the

Supreme Court has found that an inmate’s status as a pretrial

detainee does not entitle him to the full expectation of privacy

in his prison cell that he would have in his home, and that his

expectation of privacy is “diminished” by his incarceration. 

Hudson v. Palmer, 468 U.S. 517, 524 n.6 (1984) (citing Bell v.

Wolfish, 441 U.S. 520, 556-57, 560-61 (1979) (searches of

pretrial detainees’ cells did not violate the Fourth Amendment

and did not constitute punishment violative of the Due Process

Clause)). The facts presented in Boulanger’s complaint are

insufficient to state a claim that the searches were

unreasonable, or that Boulanger had an expectation of privacy in

his cell, and I would have recommended that a Fourth Amendment

claim challenging the cell searches be dismissed, had it been

raised.

17

four hours a day for a period of six months, and his cell was

searched every two hours, twenty-four hours a day, for a period

of one year4, resulting in severe sleep deprivation and therefore

a risk to his health. Some deprivations of comfort are to be

expected during incarceration, even when the incarceration is

intended to be nonpunitive pretrial confinement. However, where

a particular condition persists to the point where it is

punitive, and not a mere annoyance or discomfort, a pretrial

inmate can state a claim upon which relief might be granted for a

Fourteenth Amendment violation. Id. Boulanger has alleged that

he was subjected to punitive conditions of confinement which

persistently and severely deprived him of sleep. In an Order

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 17 of 23
18

issued simultaneously with this Report and Recommendation, I will

direct that this claim be served against the defendants to this

action.

6. Denial of Access to Law Library

Boulanger alleges that he was denied an adequate law library

at the SCHC. He alleges that the library contained inadequate

materials to conduct legal research, and that as a result, his

defense in his criminal case was impaired. While a denial of

access to the courts claim depends on the plaintiff alleging that

his legal status was harmed by a deprivation of legal materials,

see Lewis v. Casey, 518 U.S. 343, 351 (1996), plaintiff must also

allege that the availability of legal resources, including the

law library and other sources of legal information, taken as a

whole, were inadequate to meet his need to conduct research. 

Bounds v. Smith, 430 U.S. 817, 832 (1977). Here, Boulanger

complains that his criminal defense was compromised. However,

Boulanger also concedes that he had a federal public defender

representing him in his criminal matter. Because I find that

having court-appointed counsel was adequate to protect

Boulanger’s access to legal materials and to the resources

necessary to defend a criminal case, I find that he has failed to

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 18 of 23
5I note that some courts have found a cause of action to

accrue where a plaintiff alleges the confiscation or destruction

of his legal materials by prison officials if that action

infringes a plaintiff’s right of access to the courts. See

Simmons, 804 F.2d at 183 (collecting cases). Boulanger makes no

allegation that the destruction of his legal materials interfered

with his right of access to the courts and I will therefore treat

this claim only as a claim alleging the deprivation of personal

property.

19

state a claim for an inadequate law library at the SCHC or a

denial of access to the Courts. Accordingly, I recommend that

those claims be dismissed.

7. Property Claims

Boulanger alleges that during his incarceration at SCHC, he

was accused of damaging his cell, and that without any hearing,

his property, including personal property and legal materials5

provided to him by his attorney, was confiscated and destroyed. 

Claims alleging the theft, damage, loss or other misappropriation

of property are not actionable under 42 U.S.C. § 1983 where, as

here, the state has an adequate post-deprivation remedy

available. Hudson, 468 U.S. at 533; see N.H. Rev. Stat. Ann.

541-B:9(II) & (IV), and 541-B:14 (1997) (providing a postdeprivation means of recouping property loss attributable the

State). Therefore, I recommend this claim be dismissed from this

action.

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20

8. Official Capacity Suits/Municipal Liability

Boulanger has named all of the defendants to this action in

both their individual and official capacities. An official

capacity suit is one that essentially sues the government entity

in the stead of a person responsible for the alleged conduct. 

Boulanger, therefore, in attempting to sue the defendants in

their official capacities has actually alleged a suit against the

federal government, in the case of the federal defendants, and

Strafford County, in the case of the state-employed defendants.

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). Under New Hampshire law,

counties, such as Strafford, 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.”). In order to

maintain an official capacity suit against the county of

Hillsborough as a municipality under § 1983, the claim must be

grounded upon an unconstitutional municipal custom or practice

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

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 20 of 23
21

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

constructive knowledge of it yet did nothing to end the

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

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

Cir.), cert. denied, Everett v. Bordanaro, 493 U.S. 820 (1989)). 

Second, the custom must have been the cause of and “the moving

force” behind the deprivation of constitutional rights. Wood v.

Hancock County Sheriff’s Dep’t, 354 F.3d 57, 64 (2003) (citing

Miller, 219 F.3d at 12. 

Boulanger has not asserted any facts that demonstrate that

the county of Strafford engaged in a custom or policy of allowing

or enabling employees of the SCHC to violate the plaintiff’s

rights in the manner described in Boulanger’s complaint. I find,

therefore, that Boulanger has not stated a claim against the

county of Strafford, and I recommend that the official capacity

suits be dismissed against the SCDC defendants and that this

action proceed against those defendants who remain in the case

only in their individual capacities.

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 21 of 23
22

Further, while a Bivens action allows constitutional claims

to be raised against federal officials in their individual

capacities, Bivens does not override the federal government’s

sovereign immunity which prohibits suits against the United

States, its agencies, or federal officers sued in their official

capacities. McCloskey v. Mueller, 446 F.3d 262, 271-72 (1st Cir.

2006). I therefore find that Boulanger cannot bring suit against

Gilbert in his official capacity. I recommend that the official

capacity claim against him be dismissed.

Conclusion

For the foregoing reasons, I recommend that defendants

Lappin and Reaster, and that the claims alleging endangerment,

inadequate law library, denial of access to the courts,

deprivation of property, and liability of the defendants in their

official capacities, be dismissed from this action. In an Order

issued simultaneously with this Report and Recommendation, I

direct service of the remaining claims against the remaining

defendants named in the complaint.

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

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 22 of 23
23

appeal the district court’s order. See Unauth’d 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 15, 2006

cc: Gerard Boulanger, pro se

Case 1:06-cv-00308-SM Document 5 Filed 11/15/06 Page 23 of 23