1Edmondson names the following additional defendants to this

action: New Hampshire State Prison (“NHSP”) Warden Bruce Cattell,

former NHSP Sexual Offender Program (“SOP”) Director Irene

McCormack, SOP therapists Judy Mann, Ruth Kevghas, Kimberly

March, and Norman Smith, and Dr. Keith Courtney.

2Edmondson has also filed a motion for an emergency

preliminary injunction (document no. 7). That motion has been

referred to me by the District Judge (document no. 8) for a

recommended disposition. In a Report and Recommendation issued

simultaneously with this Order, I recommend that emergency

preliminary relief be denied.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William Edmondson

v. Civil No. 05-cv-445-JD

Stephen J. Curry, Commissioner,

New Hampshire Department of

Corrections, et al.1

O R D E R

Before the Court is William Edmondson’s complaint, filed

pursuant to 42 U.S.C. § 1983 (document no. 1) and his motion for

court-appointed counsel (document no. 6).2 Edmondson has alleged

a violation of his First Amendment right not to be subjected to

the establishment of religion caused by religious content in the

Sexual Offender Program (“SOP”) at the New Hampshire State Prison

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 1 of 16
2

(“NHSP”). Edmondson has also alleged a violation of his First

Amendment right to petition the government for a redress of

grievances, in that he claims that he was terminated by the SOP

in retaliation for his testimony and involvement in a lawsuit

challenging the religious content of the SOP. The matter is

before me for preliminary review to determine, among other

things, whether or not the complaint states any claim upon which

relief might be granted. For the reasons stated herein, I find

that it does, and I direct that the complaint be served on

defendants Curry, Cattell, McCormack, Mann, Kevghas, Marsh,

Courtney, and Smith in accordance with the instructions at the

conclusion of this order. 

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 either direct service of the complaint against one or more of

the defendants, or to prepare a report and recommendation

advising the district judge that the complaint or some portion

thereof should be dismissed because:

(i) the allegation of poverty is untrue, the action 

is frivolous, malicious, or fails to state a claim 

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 2 of 16
3

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).

United States District Court for the District of New Hampshire

Local Rule 4.3(d)(2)(A). 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). 

Application of this standard ensures that pro se pleadings are

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 3 of 16
3Edmondson’s complaint alleges that, ostensibly as a result

of Duquette’s lawsuit, the SOP was forced to place warning labels

on materials that would possibly contain spiritual or religious

references, and SOP participants were forced to sign a disclaimer

indicating that they were aware that such publications might be

used and that they could object to their use if they chose.

4

given fair and meaningful consideration. See Eveland v. Dir. of

C.I.A., 843 F.2d 46, 49 (1st Cir. 1988).

Background

William Edmondson joined the SOP at the NHSP in December of

2003. Edmondson participated in the SOP programming and

successfully progressed through the stages of the program until

the spring of 2005. In March of 2005, Edmondson was subpoenaed

to testify at a hearing held in this Court pertaining to a

lawsuit filed by another inmate, Randy Duquette, objecting to the

religious content of the SOP. Edmondson testified at the

Duquette hearing that the SOP materials contained religion and

spirituality that was tantamount to religious indoctrination.3

Edmondson also claims that other religious and spiritual

teachings were routinely included in the SOP programming, and

that although some of the SOP practices have changed, religious

and spiritual content that Edmondson does not wish to participate

in continues to be included in the SOP materials and programs. 

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 4 of 16
5

At the March 2005 hearing in the Duquette suit, Edmondson

advised the Court that he feared he would be terminated from the

SOP in retaliation for his testimony. Edmondson stated that he

had received threats to that effect from SOP Director Irene

McCormack, SOP counselors Judy Mann, Kim Marsh, Ruth Kevghas, and

Norman Smith, and inmate facilitator Gary Fecteau. 

On April 9, 2005, Edmondson told McCormack that he objected

to being forced to participate in “faith-based” programming in

the SOP. Edmondson included in his objection, but did not limit

his objection to, spirituality in his maintenance contract, which

is a contract created by Edmondson and is for him to live by

after he leaves the SOP. The creation of a maintenance contract

is a final step in the SOP prior to an inmate graduating from the

program. Edmondson alleges that in the spring and summer of

2005, he completed all of the stages of the SOP and was working

on completing his maintenance contract. McCormack responded to

Edmondson and told him that he would not be required to complete

the spirituality section of his maintenance contract if he did

not want to.

Edmondson alleges that on July 1, 2005, he was “placed on

contract,” a mechanism by which SOP staff requires an inmate to

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 5 of 16
6

comply not only with the SOP program requirements but also with

any special requirements included in the contract or be

terminated from the program. An inmate is placed on contract in

response to a serious problem in the inmate’s progress in the

SOP. The contract document, signed by Kevghas and Marsh, which

is attached to Edmondson’s complaint, states that he was placed

on contract for “spreading malicious rumors” about other members

of the SOP community, and for engaging in aggressive and

sexualized horseplay in his cell by flicking another inmate on

the nipple in order to inflict pain on the inmate. Further,

Edmondson was advised he would need to address “victim stancing,”

“holding resentments,” and other “aggressive behaviors” in order

to successfully progress through the SOP. Edmondson alleges that

the charges in the contract are at least partly fabricated or

exaggerated, and that the contract was issued in retaliation for

his testimony about problems with religious material at the SOP,

and not as a result of any maladaptive behavior on his part. 

Edmondson alleges that he was terminated from the SOP on

July 27, 2005, nine days prior to his scheduled graduation. 

Edmondson’s notice of termination was signed by Kevghas, Mann,

McCormack, Courtney, and Smith. Edmondson’s termination notice

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 6 of 16
4The terms of Edmondson’s termination from the SOP permitted

Edmondson to apply for readmission to the program six months

7

stated that he was terminated for, among other things, breaching

his original treatment contract, signed upon his admission to the

SOP, by disclosing information about another SOP inmate outside

of the SOP program. The letter claims that the termination was

necessary because this was not the first instance in which

Edmondson had violated confidentiality. The first instance

alleged by the SOP staff related to the incident involving sexual

conduct between two inmates that had been part of the stated

reason for Edmondson being placed on contract. Edmondson alleges

that he was terminated after he had completed the substantive

work of the program in retaliation for his involvement in the

Duquette lawsuit and his testimony concerning SOP practices. 

Edmondson appealed the complaints raised here to both Warden

Cattell and Commissioner Curry who denied his appeals and failed

to take any action to correct the wrongs alleged by Edmondson in

response to his grievances. 

In November of 2005, Edmondson was denied parole because he

had not completed the SOP. Edmondson was told by the parole

board that he would have to complete the SOP in order to be

considered for release on parole.4

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after the effective date of the termination.

8

Discussion

1. Establishment Clause Claim

The Establishment Clause of the First Amendment to the

United States Constitution prohibits the government from coercing

anyone to support or participate in religion or its exercise. 

Lee v. Weisman, 505 U.S. 577, 587 (1992). The provisions of the

First Amendment are made applicable to the states through the

Fourteenth Amendment. 

“[T]he type of coercion that violates the Establishment

Clause need not involve either the forcible subjection

of a person to religious exercises or the conditioning

of relief from punishment on attendance at church

services. . . . Coercion is also impermissible when it

takes the form of ‘subtle coercive pressure’ that

interferes with an individual’s ‘real choice’ about

whether to participate in worship or prayer.” 

DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 412 (2d

Cir. 2001) (internal citations omitted); see Rutan v. Republican

Party of Ill., 497 U.S. 62, 77-78 (1990) (“What the First

Amendment precludes the government from commanding directly, it

also precludes the government from accomplishing indirectly.”). 

Conditioning parole eligibility or risk status on attendance at a

faith-based rehabilitation program constitutes coerced religious

involvement. Kerr v. Farrey, 95 F.3d 472, 480 (7th Cir. 1996). 

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 8 of 16
9

Edmondson has alleged that as a participant in the SOP, he

was forced to use materials that were religious or faith-based. 

Edmondson alleges that the SOP programming involved scriptural

quotes being posted in public places, a twelve-step program that

utilized the idea of a “higher power” and prayer. Edmondson

further alleges that his participation in and completion of the

SOP is essential to his being granted parole.

I find that Edmondson has made a prima facie showing that

the SOP used faith-based principals in the program by

incorporating references to a higher power, to spirituality, to 

God, and to the Bible. I further find that Edmondson has made a

prima facie showing that the parole board’s requirement that

Edmondson complete SOP before being considered for parole is

coercive in that Edmondson could reasonably feel that he had to

participate in faith-based programming in order to be granted

parole. Accordingly, I find that Edmondson has sufficiently

alleged an Establishment Clause claim against the SOP staff to

allow the claim to proceed against defendants McCormack, Mann,

Kevghas, Marsh, and Smith. 

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 9 of 16
10

2. Retaliation/Right to Petition the Government for a Redress 

of Grievances

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). “[I]ntentional obstruction of a prisoner’s right to seek

redress of grievances 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 a

prisoner 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

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 10 of 16
11

legitimate penological interests, even at the expense of certain

constitutional rights, 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). Retaliation can be inferred from the chronology of

events. See Ferranti, 618 F.2d at 892 (chronology of events

provided support for inference of retaliation); McDonald, 610

F.2d at 18 (same).

Edmondson alleges that the defendant SOP staff members

placed him on a contract and terminated him from the SOP in July

of 2005 in retaliation for his involvement and testimony in a

lawsuit that accused the SOP of unconstitutional practices. 

Edmondson claims that his testimony in court hearings during the

spring of 2005 resulted in animosity and threats against him, and

his mistreatment by the SOP staff. Ultimately, Edmondson alleges

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 11 of 16
12

that this mistreatment took the form of placing him on contract

and ultimately terminating him from the SOP when he had completed

the treatment work and was days from graduation. For purposes of

preliminary review, I find that the chronology of events alleged

by Edmondson, combined with the animosity and mistreatment he

alleges occurred as a direct result of his testimony in a lawsuit

concerning religion in SOP programming, sufficiently to state a

claim for a violation of Edmondson’s First Amendment right to

petition the government for a redress of grievances. 

Accordingly, I find that the allegations in Edmondson’s complaint

are sufficient to state a retaliation claim against all of the

named defendants in their individual capacities.

3. Official Capacity Suit

Edmondson has named Commissioner Curry and Warden Cattell as

defendants to this action in both their individual and official

capacities. It is well-settled that the Eleventh Amendment bars

suits against state entities and state agents working in their

official capacities unless the state has expressly waived

immunity, which has not been done by New Hampshire for actions

brought pursuant to 42 U.S.C. § 1983. See Puerto Rico Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc. 506 U.S. 139, 146 (1993)

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 12 of 16
13

(Eleventh Amendment bars all suits in federal court against

states or their agencies); Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989) (holding that § 1983 does not override the

Eleventh Amendment and that the state is not a person within the

meaning of § 1983). Accordingly, I construe this complaint as

suing Curry and Cattell only in their individual capacities.

4. Supervisory Liability

Edmondson names Cattell and Curry in this action in their

individual supervisory capacities. “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 “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.” Id. at 44. Both Cattell’s

and Curry’s failure to act on the appeals bringing the issues

raised herein to their attention can be construed as conduct that

amounts to authorization and condonation of the improper

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 13 of 16
14

retaliation alleged. Accordingly, I will allow this action to

proceed against both Cattell and Curry in their individual

supervisory capacities.

5. Motion to Appoint Counsel

Edmondson has filed a motion to appoint counsel in this

matter (document no. 6). Edmondson alleges that he is unable to

afford counsel to assist him in this matter. 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). In the case at hand, Edmondson has failed to establish

the existence of such circumstances. Edmondson’s motion for

counsel is therefore denied without prejudice to refiling in the

future should circumstances warrant.

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 14 of 16
15

Conclusion

As I find that plaintiff has stated a claim upon which

relief may be granted, I order that this action shall proceed

against defendants Curry, Cattell, McCormack, Mann, Kevghas,

Marsh, Courtney, and Smith. I order the complaint (document no.

1) and motion to appoint counsel (document no. 6) to be served on

Defendants. The Clerk’s office is directed to serve the New

Hampshire Office of the Attorney General (AG), as provided in the

Agreement On Acceptance Of Service, copies of this order and the

complaint (document no. 1). See LR 4.3(d)(2)(C). Within thirty

days from receipt of these materials, the AG will submit to the

court an Acceptance of Service notice specifying those defendants

who have authorized the AG’s office to receive service on their

behalf. When the Acceptance of Service is filed, service will be

deemed made on the last day of the thirty-day period. 

As to those defendants who do not authorize the AG’s office

to receive service on their behalf or whom the AG declines to

represent, the AG shall, within thirty days from receipt of the

aforementioned materials, provide a separate list of the last

known addresses of such defendants. The Clerk’s office is

instructed to complete service on these individuals by sending to

Case 1:05-cv-00445-JD Document 22 Filed 04/03/06 Page 15 of 16
16

them, by certified mail, return receipt requested, copies of

these same documents. 

Defendants are instructed to answer or otherwise plead

within thirty days of acceptance of service. See Fed. R. Civ. P.

12(a)(1)(A). 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the Defendants by delivering or mailing the materials to them or

their attorneys, pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 3, 2006

cc: William Edmondson, pro se

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