1In addition to Warren Dowaliby, the Superintendent of the

Strafford County House of Correction (“SCHC”), Potocki names SCHC

officers Kirk Derusha and Steve Pollared as defendants to this

action.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Derek Potocki

v. Civil No. 07-cv-071-SM

Warren Dowaliby, Superintendent,

Strafford County House of

Corrections, et al.1

REPORT AND RECOMMENDATION

Derek Potocki has filed a civil rights complaint, pursuant

to 42 U.S.C. § 1983, alleging that he was subjected to

unconstitutional treatment while he was incarcerated at the

Strafford County House of Correction (“SCHC”). The matter is

before me for preliminary review to determine whether, among

other things, the complaint states any claim upon which relief

might be granted. See United States District Court for the

District of New Hampshire Local Rule (“LR”) 4.3(d)(2); 28 U.S.C.

§ 1915(e)(2)(B). 

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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. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) 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.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997)

(same). All of the factual assertions made by a pro se plaintiff

and inferences reasonably drawn therefrom must be accepted as

true. See id. This review ensures that pro se pleadings are

given fair and meaningful consideration.

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Background

Potocki alleges that, after he was placed in a cell in the

booking area at SCHC, he attempted to hang himself in his cell. 

Potocki passed out, and when he regained consciousness, he was

handcuffed behind his back. After Potocki regained

consciousness, SCHC Corrections Officer Pollared grabbed

Potocki’s shirt and said: “You are not going to die on my shift.” 

Pollared then punched Potocki in the head. 

Potocki wanted criminal charges filed against Pollared, but

SCHC Superintendent Dowaliby falsely told the Strafford County

Sheriff’s Department that Potocki did not want to file criminal

charges. Potocki claims that, as a result, no charges were

brought against Pollared. 

Potocki states that, during his incarceration at SCHC, he

has been on “medical watch” due to his mental health problems. 

Potocki alleges that SCHC Corrections Officer Derusha made a

habit of sitting in front of Potocki’s cell harassing him until

he “flip[ped] out.” Potocki alleges that Derusha harrassed him

by calling him names and threatening him with physical harm. 

Potocki further claims that Dowaliby was made aware of this

problem and failed to remedy the situation. 

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242 U.S.C. § 1983 provides that:

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 

4

Potocki alleges that he has been denied adequate bedding at

the SCHC. He was provided only with a mat on the floor and a

wool blanket. Potocki is allergic to wool. Potocki claims he

has been denied showers and clean clothing for up to five days at

a time, and has been housed in a cell with a toilet that was

clogged and unusable for seven days. Potocki states that there

is someone else’s blood on the walls of his cell and that SCHC

officials have refused to clean the blood off of his cell walls,

despite the hazard it presented to Potocki’s well-being. 

Finally, Potocki claims that he has been denied all exercise due

to being locked in his cell twenty-four hours a day.

Discussion

I. Section 1983 Claims

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. § 19832; City of Okla. City v.

Case 1:07-cv-00071-SM Document 8 Filed 09/12/07 Page 4 of 12
injured in an action at law . . . .

3The claims identified in this Order will be considered for

all purposes to be the claims raised in this action. If Potocki

disagrees with this identification of claims, he must properly

move to amend his complaint.

5

Tuttle, 471 U.S. 808, 829 (1985); Wilson v. Town of Mendon, 294

F.3d 1, 6 (1st Cir. 2002). In order for a defendant to be held

liable under § 1983, his or her conduct must have caused the

alleged constitutional or statutory 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. 1997). Here, Potocki claims

that the defendants, all state actors, have violated his federal

constitutional rights.3 His claims arise, therefore, under §

1983.

II. Potocki’s Incarcerative Status

It is unclear from his complaint whether Potocki was a

pretrial detainee or sentenced inmate at the time the events he

describes occurred. If he was a pretrial detainee, Potocki’s

challenges to the conditions of his detention arise under the

Fourteenth Amendment. See, e.g., Lyons v. Powell, 838 F.2d 28,

29 (1st Cir. 1988) (per curiam) (rejecting an Eighth Amendment

challenge to pretrial detention). “‘[T]he State does not acquire

the power to punish, with which the Eighth Amendment is

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6

concerned, until after it has secured a formal adjudication of

guilt in accordance with due process of law.’” Martinez-Rivera

v. Ramos, ___ F.3d ___, 2007 WL 2254586, *4 (1st Cir. 2007)

(quoting Ingraham v. Wright, 430 U.S. 651, 671-72 n.40 (1977)). 

Detainees have a constitutional right under the due process

clause of the Fourteenth Amendment to be free of punishment. See

Surprenant v. Rivas, 424 F.3d 5, 15 (1st Cir. 2005) (citing

O’Connor v. Huard, 117 F.3d 12, 15 (1st Cir. 1997)). However,

challenged conditions or restrictions which can be rationally

related to some legitimate administrative goal or security

concern generally will not be deemed unconstitutional

“punishment.” O’Connor, 117 F.3d at 15. Because the Due Process

Clause prohibits the infliction of punishment on a person prior

to a judgment of conviction, the issue in evaluating claims by a

pretrial detainee is ultimately whether the conditions of

confinement were reasonably related to a legitimate state

interest or were intended instead as punishment. See Surprenant,

424 F.3d at 13; Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d

315, 317 (1st Cir. 1995).

Prison conditions for sentenced inmates are scrutinized

under the Eighth Amendment, which protects against the infliction

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4If in fact Potocki is later determined to have been a

convicted inmate at the time of the incidents alleged, it may be

that one or more of the claims for which I direct service will

not survive the higher scrutiny of viability that will occur

under an Eighth Amendment analysis.

7

of cruel and unusual punishment. See Farmer v. Brennan, 511 U.S.

825, 832 (1994); Burrell v. Hampshire County, 307 F.3d 1, 7 (1st

Cir. 2002). The Eighth Amendment prohibits any punishment which

violates civilized standards of decency or involves the

“unnecessary and wanton infliction of pain.” Ingraham, 430 U.S.

at 670 (quoting Estelle, 429 U.S. at 97, 102-03. 

The Fourteenth Amendment analysis afforded pretrial

detainees allows for a more expansive recognition of cognizable

claims than the standard applied to convicted inmates. I will

presume, therefore, for purposes of preliminary review, that

Potocki was a pretrial detainee when the alleged incidents

occurred, and evaluate his claims accordingly.4

III. Excessive Force

The Fourteenth Amendment protects a pretrial detainee from

excessive force that amounts to punishment. See O’Connor, 117

F.3d at 16; Garcia v. City of Boston, 115 F. Supp. 2d 74, 81 (D.

Mass. 2000), aff’d, 253 F.3d 147 (1st Cir. 2001). In determining

whether a plaintiff has stated a claim for unconstitutionally

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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. Potocki

alleges that Pollared used excessive force when he punched

Potocki in the head, because, at the time, he was handcuffed and

regaining consciousness after a suicide attempt. Other than

attempting to die on Pollared’s shift, Potocki alleges, he did

nothing to provoke any attack, much less a punch in the head. 

Potocki does not report whether or not he was injured by the

assault, but it is alleged that the force was not applied in

order to maintain or restore discipline. Accordingly, I find

that Potocki has stated a valid claim for excessive force against

defendant Pollared and, in my Order issued simultaneously with

this Report and Recommendation, I will direct service of this

claim on Pollared.

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IV. Failure to Pursue Criminal Prosecution of Pollared

“There is no cause of action under § 1983 for failure to

prosecute a crime where the civil rights complainant alleges that

he was the victim, as there appears to be no federal

constitutional right to have criminal wrongdoers brought to

justice.” Nieves-Ramos v. Gonzalez-De-Rodriguez, 737 F. Supp.

727, 728 (D.P.R. 1990); see also Linda R. S. v. Richard D., 410

U.S. 614, 619 (1973) (“a private citizen lacks a judicially

cognizable interest in the prosecution or non prosecution of

another.”). Here, Potocki alleges that he wanted criminal

charges to issue against Pollared for the assault in Potocki’s

cell, but that Dowaliby deliberately denied him access to

criminal prosecution. Because Potocki has no constitutional

right to have Pollared prosecuted, no § 1983 claim emanates from

Dowaliby’s frustration of such prosecution, as Dowaliby has not

deprived Potocki of any constitutional right. Accordingly, I

recommend that this claim be dismissed from this action. 

V. Harassment

In general, there is no constitutionally protected right

held by a prisoner not to be verbally abused or harassed. See

Shabazz v. Cole, 69 F.Supp.2d 177, 198-201 (D.Mass. 1999) (citing

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authority to explain that racial slurs and verbal threats do not

violate a prisoner’s constitutional rights). Potocki, however,

as a pretrial detainee, is protected by the Due Process Clause of

the Fourteenth Amendment from verbal harassment that is designed

to punish him. See Bell v. Wolfish, 441 U.S. 520, 534 (1979)

(“[W]hat is at issue when an aspect of pretrial detention that is

not alleged to violate any express guarantee of the Constitution

is challenged, is the detainee’s right to be free from

punishment. . . .”) (emphasis in original). Potocki has alleged

sufficient facts to support his claim that defendant Derusha was

harassing him as a form of punishment, in violation of the

Fourteenth Amendment. I will, therefore, direct that this claim

be served on Derusha in my Order issued simultaneously with this

Report and Recommendation.

VI. Conditions of Confinement

In examining Potocki’s allegations that he was denied humane

conditions of confinement, I consider whether the questioned

conditions of confinement were reasonably related to a legitimate

state interest or were intended instead as punishment. See

Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d 315, 317 (1st

Cir. 1995). Potocki specifically alleges a denial of adequate

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bedding, showers, clean clothing, a working toilet, and exercise.

I find here that, while defendants may ultimately be able to

demonstrate that some or all of the conditions described were

reasonably related to legitimate state interests, Potocki has

alleged sufficiently harsh and unhygienic conditions of his

confinement to state a claim for unconstitutionally punitive

prison conditions. Further, Potocki alleges in his complaint

that he filed multiple grievances regarding all of his claims

raised, and that Dowaliby, was therefore put on notice of the

unconstitutional treatment Potocki received at the SCHC, and

failed to take any remedial action. Dowaliby, as Superintendent

of the SCHC, is the individual responsible for the general

conditions of the prison, including, among other things, the

cleanliness of cells, provision of adequate bedding, clothing,

and showers to inmates, and the state of repair of the plumbing

facilities. Accordingly, I will direct that this claim be served

on Dowaliby in my Order issued simultaneously with this Report

and Recommendation.

Conclusion

For the reasons stated herein, I will direct, in my Order

issued simultaneously with this Report and Recommendation, that

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(1) the excessive force claim proceed against Pollared, (2) the

Harassment claim proceed against Derusha, and (3) the conditions

of confinement claim proceed against Dowaliby. I also recommend

that the claim relating to Dowaliby’s failure to further criminal

prosecution of Pollared be dismissed.

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: September 12, 2007 

cc: Derek Potocki, pro se

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