1Currier filed a Complaint (document no. 1) on September 5,

2006 and a Motion to Amend Complaint (document no. 15) containing

additional defendants and claims on October 17, 2006. I will

accept the amended complaint and consider the information

contained in both documents, in the aggregate, as the complaint

in this matter.

2Currier names the following individual defendants to this

action: HCHC Superintendent James O’Mara, HCHC Officers Clement,

Nelson, Torres, Sapienza, Sierra, Cooper, Archambault, Riley,

Brown, Gardini, and Cunningham.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

James B. Currier

v. Civil No. 06-cv-328-PB

Hillsborough County Department

of Corrections, et al.

REPORT AND RECOMMENDATION

Proceeding pro se, James Currier has filed this action1

pursuant to 42 U.S.C. § 1983 against the Hillsborough County

Department of Corrections (“HCDC”) and employees of the

Hillsborough County House of Corrections (“HCHC”).2 The

complaint is before me for preliminary review to determine

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

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 1 of 26
3The defendants have already filed an answer, in response to

being served a copy of the initial complaint with a motion for

temporary restraining order filed by Currier. The answer is

premature and I will not consider it in conducting this

preliminary review.

2

relief might be granted.3 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 herein, I direct, in an

Order issued simultaneously with this Report and Recommendation,

that the claims alleging excessive force and psychological harm

proceed against all of the named individual defendants to this

action, the claims alleging inadequate medical care and denial of

access to the courts proceed against defendant O’Mara, the claims

alleging retaliatory disciplinary action and a deprivation of the

right to petition the government for a redress of grievances

proceed against defendant Cooper and the endangerment claim

proceed against defendant Gardini. I recommend that the claims

alleging a denial of adequate mental health care and destruction

of personal property, as well as defendant HCDC, 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

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 2 of 26
3

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

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

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 3 of 26
4

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).

Background

On July 1, 2006, at 4:30 a.m., James Currier was being

booked into the HCHC. During booking, he was restrained with

handcuffs and leg restraints. Currier alleges that after he was

restrained, HCHC officers lifted him off the ground, carried him

into a cell, and beat him, while other officers looked on and

allowed the beating to occur without intervening. As a result of

the beating, and the fact that his handcuffs were too tight at

the time, Currier alleges he suffered from possible nerve damage,

numbness, and persistent pain in his hands, injuries to his back,

neck and shoulders, as well as serious psychological harm. 

Currier further alleges that he did not receive any medical care

for these injuries at the HCHC despite his repeated requests for

medical attention. Currier also claims that his glasses were

damaged during the beating and not repaired or replaced. 

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 4 of 26
4On September 28, 2006, Currier filed a complaint in this

Court alleging a multi-plaintiff § 1983 action against the HCDC

and O’Mara. See Currier v. Hillsborough County Dep’t of Corrs.,

et al., Civ. No. 06-fp-370.

5

On July 22, 2006, Currier filed a grievance regarding the

July 1 incident. The Captain who responded to the grievance

determined that it was unfounded as Currier’s “intoxication level

and . . . actions lead the [HCHC officers] and Manchester Police

to restrain [him] after charging officer Clement.” On August 4,

2006, O’Mara reviewed the grievance and determined that no action

was required on his part.

Currier further alleges that he has a history of depression

and mental illness. Upon his admission to HCHC, Currier made the

HCHC staff aware of his mental health history, and the fact that

he had previously been prescribed psychiatric medication. 

Despite this information, and Currier’s requests to see a

psychiatrist and for appropriate medication, the HCHC staff did

not provide Currier with any mental health treatment.

On September 26, 2006, Currier was overheard by Officer

Cooper telling other inmates that he was going to file a class

action lawsuit in the federal court regarding the conditions of

confinement at the HCHC.4 Currier alleges that Cooper, acting in

retaliation for his lawsuit and Currier’s grievance regarding the

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 5 of 26
6

July 1 incident, filed a disciplinary charge for disorderly

conduct against Currier. Currier alleges that the institutional

offense of disorderly conduct is so vague that the HCHC

regulations did not make him aware of what conduct on his part

would violate the regulation.

Currier further complains that, as a maximum security

inmate, he was denied access to the law library. Currier could

obtain legal materials only by “cell delivery” without any

additional assistance, and therefore did not have the option of

researching materials that he did not already know he needed. 

Currier alleges, nonspecifically, that he has been prejudiced in

the prosecution of his civil case against the HCHC defendants

because he has been unable to conduct adequate research.

On October 1, 2006, at 8:30 p.m., Officer Gardini falsely

told two inmates that their cell change request had been denied

because Currier had filed a grievance complaining about their

request. Currier alleges that Gardini, in retaliation for

Currier filing his lawsuit and grievance, intentionally placed

him in danger by attempting to set Currier up to be harmed by

other inmates. 

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 6 of 26
5The claims as identified herein will be considered for all

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

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.

642 U.S.C. § 1983 provides that:

Every person who under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory of 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 . . . .

7

Currier states that he was a pretrial detainee from July 1,

2006 until August 8, 2006, when he was sentenced to a term of

imprisonment at the HCHC. He remained incarcerated at the HCHC

as a sentenced inmate until October of 2006.

Discussion5

1. Section 1983 Claims and Currier’s Incarcerative Status

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal constitutional

or statutory law. See 42 U.S.C. § 19836; Parratt v. Taylor, 451

U.S. 527, 535 (1981); Wilson v. Town of Mendon, 294 F.3d 1, 6

(1st Cir. 2002). In order to be held liable for a violation

under § 1983, a defendant’s conduct must have been a cause in

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 7 of 26
8

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.), cert. denied, 522 U.S. 819

(1997). The particular constitutional provision that an inmate

may assert in a § 1983 action depends on his or her incarcerative

status at the time of the alleged violation. 

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 Currier’s claims that arose prior to

August 8, 2006 alleging unconstitutionally punitive conditions of

confinement arise under the Fourteenth Amendment. The prison

condition claims that arose or continued after August 8, 2006,

when Currier was a sentenced inmate are cognizable under the 

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 8 of 26
9

Eighth Amendment’s prohibition against cruel and unusual

punishment. 

2. Excessive Force/Failure to Protect/Psychological Harm

As a detainee, Currier is protected by the Due Process

Clause of the Fourteenth Amendment from “the use of excessive

force that amounts to punishment.” Graham v. Connor, 490 U.S.

386, 395 n.10 (1989); see Garcia v. City of Boston, 115 F. Supp.

2d 74, 81 (D. Mass. 2000), aff’d, 253 F.3d 147 (1st Cir. 2001). 

The use of excessive force by a law enforcement official against

a pretrial detainee is actionable under § 1983. Town of Mendon,

294 F.3d at 6 (citing Graham, 490 U.S. at 395-96, 395 n.10). In

determining whether a plaintiff has stated a claim for

unconstitutionally excessive force, the court should look to the

following four factors: (1) “the need for application of force,”

(2) “the relationship between the need and the amount of force

that was used,” (3) “the extent of injury inflicted,” and (4)

“whether the force was applied in good faith to maintain or

restore discipline or maliciously and sadistically for the very

purpose of inflicting harm.” Garcia, 115 F.Supp.2d at 81.

Further, a state actor has a duty to protect incarcerated

prisoners from harm by another state actor. DeShaney v.

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 9 of 26
10

Winnebago County, 489 U.S. 189, 199 (1989), Davis v. Rennie, 264

F.3d 86, 98 (1st Cir. 2001), cert. denied, Rennie v. Davis, 535

U.S. 1053 (2002). An officer may be held liable under § 1983

“for his failure to intervene in appropriate circumstances to

protect an arrestee from the excessive use of force by his fellow

officers.” Gaudreault v. Municipality of Salem, 923 F.2d 203,

207 n.3 (1st Cir. 1990), cert. denied, 500 U.S. 956 (1991); see

also McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990)

(prison guard has a duty to protect a prisoner from the use of

excessive force by another prison guard). Gaudreault’s

requirement that officers protect arrestees applies also to a

requirement that pretrial detainees be protected by prison

employees. 923 F.2d at 207 n.3.

Applying the factors set out in Garcia to this case, I find

that Currier alleges that he was beaten in a cell after he was

restrained in handcuffs. While the grievance attached to the

complaint raises a question as to Currier’s conduct prior to the

incident alleged that may have justified restraining Currier,

nothing in the pleadings suggests that any action on Currier’s

part warranted excessively tight handcuffs or a beating severe

enough to cause lasting pain and damage. Currier has alleged

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 10 of 26
11

that force was used against him disproportionately to any need

that may have existed for restraint, and that as a result, he

sustained significant injuries. Currier’s allegations also

indicate that the force applied was malicious and committed with

the intent to harm. Accordingly, I find that Currier has stated

a claim for excessive force for the July 1 beating incident. 

Currier also alleges a claim of psychological harm. The

Prison Litigation Reform Act, 42 U.S.C. § 1997e(e) provides that

“[n]o Federal civil action may be brought by a prisoner confined

in jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior

showing of physical injury.” Here, where Currier has alleged

that physical injury accompanied the psychological harm, I find

that he has properly alleged a claim for psychological or mental

harm, and I will allow that claim to proceed against each of the

individual named defendants to this action.

Currier has named a number of officers as defendants to this

action. With the exception of defendant O’Mara, who is sued in a

supervisory capacity for failing to exercise control over

officers he knew to be violent, Currier alleges generally that

the defendant officers either participated in or observed the

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 11 of 26
7The Fourteenth Amendment is at least as protective of a

pretrial detainee’s right to medical and mental health care as

claims that arise under the Eighth Amendment. As plaintiff

states an Eighth Amendment claim, I find that he also states a

claim under the Fourteenth Amendment for the period he was

detained pretrial.

12

July 1 beating. At this time, Currier has not provided more

specific information about the actions of each individual

officer. While he may well be required to do so in order to

prove his claims, for purposes of preliminary review, I will

liberally construe the claim as naming each defendant officer as

present at the July 1 beating, either as a participant, observer,

or in the case of O’Mara, a supervisor, and direct that the

excessive force and failure to protect claims proceed against

each of the named defendants.

3. Inadequate Medical and Mental Health Care

The Eighth Amendment protects prison inmates from prison

officials acting with deliberate indifference to their serious

medical needs.7 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

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, 347 (1981); Estelle, 429 U.S. at 106. The inmate

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 12 of 26
13

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. Estelle, 429 U.S. at 106. 

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 Gaudreault, 923 F.2d at 208 (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.”) (internal citations omitted). The Eighth Amendment

applies to a prison’s administration of medical care, including

mental health care. See DesRosiers v. Moran, 949 F.2d 15, 19

(1st Cir. 1991); Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir.

1991) (recognizing deliberate indifference to an inmate’s mental

health needs violates the Eighth Amendment). 

“[A]dequate 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,

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

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 13 of 26
14

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).

Currier has alleged that he suffered serious injuries to his

hands, back, neck and shoulders on July 1, and that he was denied

any medical care, despite his complaints of pain and possible

nerve damage. I find that Currier adequately alerted the HCHC

staff to his need for medical care such that the denial of care

may constitute deliberate indifference to his serious medical

needs for those HCHC employees who were notified and who were

responsible for denying Currier care. Accordingly, while Currier

has stated sufficient facts to allege Eighth and Fourteenth

Amendment violations for the denial of medical care during his

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 14 of 26
8If Currier intends to pursue this claim against appropriate

defendants, he must obtain the names of those defendants in

discovery, if he does not now know them. After obtaining the

names, Currier will have to properly move to amend his complaint. 

To this end, upon service of this claim on the defendants listed,

Currier can serve those defendants with interrogatories to obtain

the full names of any appropriate defendants that are not

presently named in the complaint, pursuant to Fed. R. Civ. P.

33(a) which states in pertinent part:

Without leave of court or written stipulation, 

any party may serve upon any other party 

written interrogatories, not exceeding 25 in 

number including all discrete subparts, to be 

answered by the party served or, if the party 

served is a public or private corporation or a 

partnership or association or governmental 

agency, by an officer or agent, who shall 

furnish such information as is available to 

the party. 

If Currier is not in possession of the names of particular

15

stay at the HCHC, he has failed to name any defendants directly

involved in the denial of medical care to this claim at this

time. Currier has adequately alleged, however, that defendant

O’Mara was given notice, in the July 22 grievance, of Currier’s

injuries and failed to assure that Currier received adequate

medical care. Accordingly, I will allow this claim to proceed

against O’Mara. If Currier intends to pursue this claim against

any other defendants, he must identify the specific defendants

directly involved in denying him medical care and seek to add

them to his complaint by properly filing a motion to amend.8 

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 15 of 26
medical care providers within the HCHC who he believes to be

appropriate defendants to this action, he is entitled to receive

a copy of his medical records, if any such records exist, which

should contain the names of the HCHC medical personnel

responsible for his care and treatment.

16

Currier has also alleged that he has serious mental health

conditions that have been identified by medical or mental health

personnel as requiring psychiatric treatment and medication. 

Currier alleges that the defendants to this claim were aware of

Currier’s mental health needs and have denied him adequate

treatment for those needs. I find therefore that Currier has

adequately alleged a claim of deprivation of adequate mental

health care, by virtue of the defendants’ deliberate indifference

to his mental health needs. Again, however, Currier has failed

to name any specific defendant responsible for denying his access

to adequate mental health care, and he will have to obtain the

names of appropriate defendants to this claim and then amend his

complaint to allege particular defendants to this claim.

4. Retaliatory Disciplinary Charge

Ordinarily, when a prisoner is subjected to a 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

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 16 of 26
17

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

U.S. 472, 483-84 (1995). Here, Currier has not stated what

sanction he was subjected to as a result of the disciplinary

proceedings that followed the disorderly conduct charge. 

Therefore, Currier has not yet stated a claim for improper

institutional discipline based solely on being charged with a

vaguely-worded offense.

However, the First Amendment’s guarantee of a right to

petition the government for a redress of grievances has been

characterized as “among the most precious of the liberties

safeguarded by the Bill of Rights.” United Mine Workers v. Ill.

State Bar Ass’n, 389 U.S. 217, 222 (1967). The right of

petition, in the prison context, means that inmates must be

“permit[ted] free and uninhibited access . . . to both

administrative and judicial forums for the purpose of seeking

redress of grievances against state officers.” Sostre v.

McGinnis, 442 F.2d 178, 200 (2d Cir. 1971) (en banc), cert.

denied, Sostre v. Oswald, 404 U.S. 1049 (1972) and Oswald v.

Sostre, 405 U.S. 978 (1972), overruled on other grounds by

Davidson v. Scully, 114 F.3d 12, 13 (2d Cir. 1997). 

“[I]ntentional obstruction of a prisoner’s access to the courts

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 17 of 26
18

is precisely the sort of oppression that . . . section 1983 [is]

intended to remedy.” Franco v. Kelly, 854 F.2d 584, 588 (2d Cir.

1988) (internal quotations omitted). 

A prisoner’s right to petition the government for a redress

of grievances under the First Amendment precludes prison

officials from retaliating against a prisoner by punishing him

for actions he takes in the exercise of those rights. See

Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). While

prison officials may make policy that is reasonably related to

legitimate penological interests, even at the expense of certain

constitutional rights, Beard v. Banks, ___ U.S. ___, 126 S. Ct.

2572, 2579 (2006) (citing Turner v. Safley, 482 U.S. 78, 89-90

(1987)), “actions otherwise supportable lose their legitimacy if

designed to punish or deter an exercise of constitutional

freedoms.” Ferranti v. Moran, 618 F.2d 888, 892 n.4 (1st Cir.

1980) (citing McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979));

see also Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993), cert.

denied, 512 U.S. 1209 (1994) (prison officials cannot lawfully

impose a disciplinary sanction against a prisoner in retaliation

for the prisoner’s exercise of his constitutional right). 

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 18 of 26
19

Currier alleges that he was subjected to the institutional

disciplinary process as a result of discussing his pending legal

action against the HCHC, which he has described as a class action

or multiple plaintiff suit, with other inmates who are or could

be plaintiffs in the action. Therefore, I find that Currier has

stated a claim that defendant Cooper retaliated against him for

exercising his constitutional right to petition the government

for a redress of grievances, and in the Order issued

simultaneously wtiht his Report and Recommendation, I will direct

that this claim proceed against Cooper. 

5. Denial of Law Library/Access to the Courts

Currier alleges that he was denied access to adequate legal

resources at the HCHC due to being placed in a classification

where he could only receive “cell delivery” of legal materials,

and that as a result, his prosecution of his civil case against

the HCHC was impaired. A claim alleging a denial of access to

the courts depends on the plaintiff alleging 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 legal research. Bounds v.

Smith, 430 U.S. 817, 832 (1977). The plaintiff must also allege

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 19 of 26
20

that his legal status was harmed by a deprivation of legal

materials. Lewis v. Casey, 518 U.S. 343, 351 (1996). Here,

Currier claims that he was denied the ability to conduct research

to the detriment of one or more of his pending civil cases. 

While Currier is nonspecific in his allegation of prejudice, I

find that he has alleged the minimum facts necessary to allow

this claim to proceed. While Currier has not named any specific

defendants to this action, he does allege that the reason he was

only able to receive “cell delivery” of legal materials was due

to policy concerning maximum security inmates. Accordingly, I

find that Currier has sufficiently alleged this claim against

O’Mara, who is responsible for ensuring that policies at the HCHC

do not impede the constitutional rights of inmates, to allow it

to proceed against O’Mara at t his time. If Currier wishes to

name other defendants to this action, he must do so by properly

moving to amend his complaint.

6. Endangerment

The safety and security of all prisoners is protected by the

Constitution. See e.g., Youngberg v. Romeo, 457 U.S. 307, 315

(1982). An Eighth Amendment claim arises only if an official

inflicts “cruel and unusual punishment” by knowing of and

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 20 of 26
21

disregarding “an excessive risk to inmate health or safety.”

Farmer, 511 U.S. at 837, 838; Giroux v. Somerset County, 178 F.3d

28, 32 (1st Cir. 1999) (explaining how the official must have “an

actual, subjective appreciation of risk”). “Prison officials

have a responsibility not to be deliberately indifferent to the

risk to prisoners of violence at the hands of other prisoners.” 

Burrell v. Hampshire County, 307 F.3d 1, 7 (1st Cir. 2002)

(citing Farmer, 511 U.S. at 833).

Here, Currier alleges that Gardini intentionally gave

inmates false information that would render them likely to

physically harm Currier, and that Gardini’s intention was that

Currier be harmed. These allegations suffice to state an

endangerment claim, and I will direct, in an Order issued

simultaneously with this Report and Recommendation, that the

endangerment claim proceed against Gardini.

7. Property Claims

Currier alleges that during the July 1 beating, his glasses

were damaged, but never repaired or replaced by the HCHC. 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

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 21 of 26
22

available. Hudson v. Palmer, 468 U.S. 517, 533 (1984); see N.H.

Rev. Stat. Ann. (“RSA”) 541-B:9(II) & (IV), and 541-B:14 (1997)

(providing a post-deprivation means of recouping property loss

attributable to the State). Therefore, I recommend this claim be

dismissed from this action.

8. Supervisory Liability

“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

182, 192 (1st Cir. 1998) (internal citations omitted). A

supervisor must be “either was 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. A municipal employer may be

held liable for its failure to properly train its officers, if

such a failure “amounts to deliberate indifference to the rights

of persons with whom the [officers] come into contact,” and where

a specific deficiency in training is the “moving force” behind a

constitutional injury. Town of Mendon, 294 F.3d at 6 (citing

Case 1:06-cv-00328-PB Document 19 Filed 11/28/06 Page 22 of 26
23

City of Canton v. Harris, 489 U.S. 378, 388-89, 391 (1989)). 

Currier has named O’Mara as a defendant to this action in his

supervisory capacity. Currier alleges that O’Mara was aware of

the propensity of some of the HCHC officers, named as defendants

here, toward violence, and yet failed to do anything to prevent

the violence against Currier from occurring. Currier further

alleges that O’Mara neglected to do anything to protect Currier’s

rights in response to Currier’s grievance regarding the July 1

incident and the untreated injuries received that day. These

allegations suffice to state claims for excessive force,

psychological harm, and medical care against O’Mara in his

supervisory capacity, and I will so direct in the Order issued

simultaneously with this Report and Recommendation.

9. Municipal Liability

Currier has named the HCDC as a defendant to this action. 

Naming a county agency is another way of naming the county as a

defendant, or, identifying the government entity in the stead of

a person responsible for the alleged conduct. Municipalities and

local government entities are “persons” within the meaning of §

1983. See Monell, 436 U.S. at 690. Under New Hampshire law,

counties, such as Hillsborough, are considered local governmental

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units. See 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 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

(1st Cir. 2003) (citing Miller, 219 F.3d at 12). 

Currier has not asserted any facts that demonstrate that the

county of Hillsborough engaged in a custom or policy of allowing

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

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

therefore, that Currier has not stated a claim against the HCDC

and I recommend that the county defendant be dismissed from this

action. 

Conclusion

For the foregoing reasons, I recommend that the HCDC, and

the claims alleging denial of adequate mental health care and

destruction of personal property, be dismissed from this action. 

In an Order issued simultaneously with this Report and

Recommendation, I direct service of the excessive force and

psychological harm claims against all of the named individual

defendants to this action, the inadequate medical care and right

of access to the courts claims against O’Mara, the retaliatory

disciplinary action and denial of the right to petition the

government for a redress of grievances claims against Cooper, and

the endangerment claim against Gardini.

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’d Practice of Law 

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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). 

 /s/ James R. Muirhead 

James R. Muirhead

United States Magistrate Judge

Date: November 28, 2006

cc: James B. Currier, pro se

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