1This matter is docketed as filed by plaintiff Joseph

Vaillancourt. The plaintiff asserts that his true name is Bryan

Bernard, and that Joseph Vaillancourt and Joe Vaillancourt are

aliases he has used. I will refer to plaintiff by his true name,

Bryan Bernard.

2Although plaintiff has framed this motion as a request for

a temporary restraining order, because notice was given to the

opposing party, who had an opportunity to be heard prior to and

at the hearing held, I find that the matter is more appropriately

considered as a request for a preliminary injunction and I will

treat the matter as such for all purposes. See Fed. R. Civ. P.

65(a)&(b).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Joseph Vaillancourt,

a.k.a. Bryan Bernard

v. Civil No. 06-cv-438-JD

New Hampshire Department of

Corrections, et al.

REPORT AND RECOMMENDATION

Plaintiff Bryan Bernard1 is an inmate at the New Hampshire

State Prison (“NHSP”). Bernard has filed a motion for a

temporary restraining order, alleging that he has been mistreated

by prison officials in retaliation for the filing of this

lawsuit.2 Defendants object. Bernard alleges that NHSP officers

have retaliated against him by verbally harassing him, and by

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3Bernard’s motion, filed while Bernard was confined at the

NHSP’s Secure Housing Unit, requested that this Court order

plaintiff transferred to the NHSP’s North Unit. Since the filing

of the motion, Bernard has been transferred to the North Unit

where, he reports, he would like to stay. I accept this as a

withdrawal of Bernard’s request for transfer and I will not

consider the request for a transfer to be part of the motion for

injunctive relief.

2

requiring him to engage in physical acts that exceed his

capabilities. Bernard seeks an order enjoining Sgt. Carroll and

other unnamed NHSP employees from engaging in these retaliatory

acts that allegedly violate his rights under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12132, et seq.3 An

evidentiary hearing on Bernard’s motion was held before this

Court on May 22, 2007. After consideration of the evidence

adduced at the hearing, as well as the written and oral arguments

before the Court, I recommend the denial of the motion for

preliminary injunctive relief for the reasons stated herein.

Standard of Review

In order to prevail on his request for preliminary

injunctive relief, the plaintiff must satisfy the Court that the

following four essential criteria exist:

(1) that plaintiff will suffer irreparable injury if

the injunction is not granted; (2) that such injury

outweighs any harm which granting injunctive relief

would inflict on the defendant; (3) that plaintiff has

exhibited a likelihood of success on the merits; and

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3

(4) that the public interest will not be adversely

affected by the granting of the injunction.

Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st

Cir. 1981). The key factor in determining whether injunctive

relief should be granted is whether the plaintiff can demonstrate

a likelihood of success on the merits. Weaver v. Henderson, 984

F.2d 11, 12 (1st Cir. 1993) (plaintiffs who are unable to

convince the trial court that they will probably succeed on the

merits will usually not obtain interim injunctive relief). A

party seeking injunctive relief, however, must independently

satisfy each of the preliminary injunction factors. Auburn News

Co. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir. 1981),

cert. denied, 455 U.S. 921 (1982); Mass. Coal. of Citizens with

Disabilities v. Civil Def. Agency & Off. of Emergency

Preparedness, 649 F.2d 71, 74 (1st Cir. 1981).

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of

the underlying action. See Matos v. Clinton Sch. Dist., 367 F.3d

68, 72 (1st Cir. 2004). Such a situation arises when some harm

from the challenged conduct could not be adequately redressed

with traditional legal or equitable remedies following a trial. 

Case 1:06-cv-00438-JD Document 191 Filed 05/30/07 Page 3 of 10
4The evidence at the hearing presented by both parties

demonstrated that Bernard received a substantial amount of

medical care while at the NHSP, including consultations with

outside experts and MRI scans of his spine and brain, as well as

other testing, diagnostic services, and medical treatment at the

prison. Bernard included a request for additional medical care

4

See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12,

18 (1st Cir. 1996) (finding irreparable harm where legal remedies

are inadequate); see also Acierno v. New Castle County, 40 F.3d

645, 653 (3d Cir. 1994) (explaining irreparable harm and its

effect on the contours of preliminary injunctive relief). 

Absent irreparable harm, there is no need for a preliminary

injunction. “The predicted harm and the likelihood of success on

the merits must be juxtaposed and weighed in tandem.” RossSimons, 102 F.3d at 19. The burden of persuasion, by a

preponderance of the evidence, that an injunction should issue,

is “squarely on” the proponent of the injunction. Id. at 18

(citing Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st

Cir. 1991)).

Background

Bernard alleges that he has filed numerous requests for

medical care that were ignored by prison officials. Bernard

filed grievances against those individuals that he believed were

failing to provide him with adequate medical care.4 Bernard

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in his motion, but, at the hearing, failed to present any

evidence regarding unmet medical needs or inadequate medical

care. Accordingly, I find that Bernard has not demonstrated the

necessity of preliminary injunctive relief regarding the

provision of medical care at the prison, and I recommend that the

request be denied.

5

claims that he was then sanctioned, or threatened with sanctions,

for filing those grievances. Bernard believes that retaliation

for these grievances has motivated defendants to harass him. 

Specifically, Bernard testified at the May 22 hearing that,

while at the NHSP, he has been frequently verbally harassed by an

officer identified as Sgt. Carroll. Bernard alleges that he and

Sgt. Carroll often engage in combative verbal exchanges. Bernard

states that he has experienced stress from the verbal harassment

he receives from Carroll that has caused him to have headaches

and nosebleeds. 

Bernard next claims that he was subjected to disciplinary

action and sanctions when he failed to stand up for “count.” As

explained by Bernard and Bernadette Campbell, Bernard’s physical

therapist who also testified at the hearing, “count” is where all

of the inmates stand up for a period of time ranging from one to

three minutes, and the prison staff actually counts each inmate

and verifies that each inmate is not only present, but alive and

well. 

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While on his current housing pod, Bernard states that he has

the use of a walker. During count, while he has to be physically

standing on his legs, Bernard is permitted to, and does, lean on

his walker for support. Bernard claims that the requirement that

he stand, rather than sit, is unreasonable, as it exceeds his

physical capabilities, and there are alternatives to standing

that would achieve the same purposes, such as sitting and waving

at the counting officers.

Bernadette Campbell is the official at the NHSP who

evaluates and approves inmates for the use of adaptive equipment

for any handicapped needs. Campbell has also personally reviewed

Bernard’s medical records, followed his progress, and provided

him with physical therapy. Campbell testified she examined

Bernard as recently as May 9, 2007. 

Campbell also testified that Bernard is capable of standing

for count with the use of a walker. Campbell stated that a pass

excusing an inmate from standing for count would only be issued

for someone who, unlike Bernard, was not able to stand, even with

adaptive equipment, such as a walker, for the length of time

required to conduct a count. Campbell further testified that

Bernard is not only physically capable of standing for count, but

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5In order to obtain the injunctive relief he seeks, Bernard

must establish that he is likely to succeed on the merits of the

claims underlying his action before this Court. See Esso

Standard Oil Co. v. Monroig-Zavas, 445 F.3d 13, 18 (1st Cir.

2006) (discussing the requisite showing to obtain a preliminary

injunction and finding that the “sine qua non of the four-part

inquiry is likelihood of success on the merits”). 

7

that he is actually encouraged to stand and to use his walker

while on his housing pod, as overuse of his wheelchair has

worsened his condition and increased his pain level. 

Discussion

In his underlying action, Bernard primarily complains that

he is not receiving adequate or appropriate medical care and

treatment. At the evidentiary hearing, Bernard did not introduce

any evidence regarding his underlying claims which would

demonstrate the likelihood of success on those claims. Bernard

has therefore failed to meet the initial requirement for the

preliminary injunctive relief he seeks.5 Instead, at the

hearing, plaintiff focused on presenting evidence regarding the

present conditions of his confinement that he alleges violate his

right to be free from verbal harassment and not to be required to

do things that are beyond his physical capabilities.

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6Although Bernard asserts that he has appealed the dismissal

of certain defendants from this action to the First Circuit, the

instant action, and the decisions already rendered in this case,

have not been stayed pending resolution of any interlocutory

appeal.

8

1. Verbal Harassment

 Bernard first seeks to enjoin Sgt. Carroll from verbally

harassing him. It is dispositive of this claim that Sgt. Carroll

is no longer a defendant to this action. My recommendation that

Carroll be dismissed from this action was approved by the

District Judge on April 23, 2007.6 Under Fed. R. Civ. P. 65(d),

a restraining order can only be binding against “parties to the

action, their officers, agents, servants, employees, and

attorneys, and upon those persons in active concert or

participation with them who receive actual notice of the order .

. ..” Bernard has not demonstrated a relationship between any of

the defendants remaining in this action at this time and Sgt.

Carroll, or proper service of Sgt. Carroll of this action, to

permit this Court to issue a binding injunction against Sgt.

Carroll. I therefore recommend that the request for an order

enjoining Sgt. Carroll from verbally harassing Bernard be denied.

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2. Standing for Count

Bernard next alleges in his motion, and asserted at the

hearing, that he is required to stand for count, and that he is

punished for failing to comply with this requirement. Bernard

attempts to show that the requirement that he stand discriminates

against him because of his disability, as he asserts that he is

physically incapable of standing for one to three minutes. The

evidence at the hearing, however, did not support that assertion. 

The evidence was that Bernard can stand for one to three minutes

with the support of a walker, and that he is permitted to use his

walker during count. Bernard admitted that he can stand for

count by leaning on the walker for support. Bernard also

admitted that if he was actually up on his feet, that he would be

meeting the standing requirement. Accordingly, I find that

Bernard has not demonstrated that he is being required to do

something that is beyond his physical capabilities, and that

therefore, injunctive relief is unnecessary to protect Bernard

from any irreparable harm he might endure pending final

disposition of this case. 

Accordingly, Bernard has not demonstrated that he requires

an injunction to protect his ability to meaningfully prosecute

Case 1:06-cv-00438-JD Document 191 Filed 05/30/07 Page 9 of 10
10

his case. Without the requisite showing of irreparable harm, a

preliminary injunction is not justified. As I recommend that the

motion for preliminary injunctive relief be denied on that basis,

it is not necessary to examine the remaining criteria for

obtaining injunctive relief.

Conclusion

For all of the reasons stated herein, I recommend that

Bernard’s motion for preliminary injunctive relief be denied. 

Any objections to this report and recommendation must be filed

within ten (10) days of receipt of this notice. Failure to file

objections within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law

Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 30, 2007

cc: Bryan Bernard, a.k.a. Joseph Vaillancourt, pro se

Nancy Smith, Esq.

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