UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Michael DeAngelis

v. Civil No. 06-cv-376-PB

New Hampshire

State Prison, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Michael DeAngelis (“DeAngelis”) is a

prisoner at the New Hampshire State Prison (“NHSP”) who brought

this civil rights action under 42 U.S.C. § 1983 challenging the

conditions of his confinement. Currently before the court is

plaintiff’s motion for a “TRO and emergency preliminary

injunction.” Documents no. 1 and 7. An evidentiary hearing was

held on January 11, 2007. For the reasons set forth below, I

recommend plaintiff’s motion for preliminary injunctive relief be

denied.

Discussion

1. Standard of Review

Preliminary injunctive relief is available only if the

movant demonstrates a need for protection against irreparable

harm, to enable a meaningful disposition of the underlying

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dispute. See CMM Cable Rep. v. Ocean Coast Props., 48 F.3d 618,

620-1 (1st Cir. 1995)(explaining the purpose of enjoining certain

conduct as being to “preserve the ‘status quo’ . . . to permit

the court more effectively to remedy discerned wrongs”). 

Irreparable harm is harm that cannot be adequately redressed with

traditional legal or equitable remedies following a trial. 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 (3rd Cir. 1994) (explaining irreparable harm and its

effect on the contours of preliminary injunctive relief). The

court’s focus, therefore, is on what needs to be done to ensure

that the merits of the underlying dispute can be meaningfully

resolved.

To demonstrate the need for a preliminary injunction,

plaintiff must satisfy the following four factors: “(1) the

likelihood of success on the merits; (2) the potential for

irreparable harm [to the movant] if the injunction is denied; (3)

the balance of relevant impositions, i.e., the hardship to the

nonmovant if enjoined as contrasted with the hardship to the

movant if no injunction issues; and (4) the effect (if any) of

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the court’s ruling on the public interest.” Esso Standard Oil

Co. v. Monroig-Zavas, 445 F.3d 13, 18 (1st Cir. 2006) (discussing

the requisite showing to obtain a preliminary injunction); see

also Ross-Simons of Warwick, Inc., 102 F.3d at 18-19 (explaining

the burden of proof for a preliminary injunction). If the

plaintiff is not able to show a likelihood of success on the

merits, the remaining factors “become matters of idle curiosity,”

id., insufficient to carry the weight of this extraordinary

relief on their own. See id. (the “sine qua non of this fourpart inquiry is likelihood of success on the merits”) (internal

quotation omitted). Yet, “the predicted harm and the likelihood

of success on the merits must be juxtaposed and weighed in

tandem.” Ross-Simons of Warwick, Inc., 102 F.3d at 19.

2. Analysis 

DeAngelis bases his request for injunctive relief on four of

the claims asserted in his complaint, although at the evidentiary

hearing he proffered evidence in support of all his claims. His

two principal complaints pertain to his complicated history of

medical problems, principally stemming from his high blood

pressure, and his social difficulties at the NHSP, which have led

to two separate and severe attacks by other inmates. He has

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broken down these complaints into the following claims:

1) Failure to protect - negligent supervision of

inmates caused plaintiff to be attacked twice,

on December 21, 2005 while housed in the general

prison population and on September 25, 2006 

shortly after being transferred to the Secure

Psychiatric Unit of the NHSP (“SPU”);

2) Denial of medical care - refusal to provide 

plaintiff with high blood pressure medication

which has caused him impaired vision, dizziness

and other complications; 

3) Retaliation - opening of plaintiff’s privileged 

medical communications by NHSP staff, and

limiting plaintiff’s use of request slips

and grievance forms;

4) Denial of mail - refusal to deliver mail.

The complaint also asserts a due process claim based on a

disciplinary hearing on January 7, 2006, about which DeAngelis

testified but also for which he has not sought, nor would the

facts support, injunctive relief.

The evidence proffered at the hearing demonstrated well that

while DeAngelis may have viable claims, his current placement in

the SPU is providing him with the medical care he requires and is

protecting him from any present or imminent irreparable harm. 

Specifically, the SPU is a medical unit with round-the-clock

nursing staff and physicians available on an “on call” basis, 24

hours a day. DeAngelis has received his medications since being

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1DeAngelis also complained about simply not receiving mail

on Saturdays in SPU, when the general population at the NHSP did. 

The evidence amply demonstrated, however, that there was nothing

retaliatory or personal to DeAngelis about this limited mail

delivery, but that it is the policy of the SPU.

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housed there, and can receive medical care without filing a

request slip to go to medical call. The evidence also showed

that the attack he suffered in September 2006 was unanticipated,

and that the following day, when the inmate who attacked him

again exhibited aggression toward DeAngelis, the guards knocked

the inmate to the ground to protect DeAngelis. That inmate has

been moved away from DeAngelis and added to his “Keep Away List,”

which identifies inmates who should not be proximate to one

another for safety reasons. DeAngelis has not alleged any other

attacks or abuse. This evidence demonstrated that while

DeAngelis may have suffered physical harm in the past, he is not

presently.

I also did not find that the conduct allegedly giving rise

to his retaliation claims in any way was causing him irreparable

harm to justify injunctive relief. The “denial of mail” claim

appears to be related to this retaliation claim, because both

generally challenge DeAngelis’ ability to seek and obtain help

from the NHSP.1 DeAngelis complained about the grievance

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procedures at the NHSP and his denied access to them. In support

of this, he cited the restricted number of request slips he is

allowed, which have been prerequisites to obtaining a grievance

form. He also asserted that these forms have been opened and

photocopied by his counselor at the prison, and suggested that

the counselor was screening which claims were processed. He was

upset that the counselor was reading this “mail,” because it

contained privileged and confidential information. Finally

DeAngelis asserted that the slow processing of his grievances has 

precluded him from obtaining review of his claims. 

While again these problems may have occurred and may support

legitimate claims in DeAngelis’ underlying § 1983 action, the

evidence indicated that they no longer persist. In particular,

Lieutenant Paul Cascio, who is in charge of the SPU, testifed

about changes he has implemented to the request and grievance

procedure there. He has instituted a new policy which allows

inmates to bypass the request slip stage and file a grievance

form directly. He also makes daily rounds, to have direct access

to the inmates and first-hand knowledge of their issues. 

Finally, the evidence showed that the limited number of request

slips and grievance forms imposed on DeAngelis is part of his

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treatment plan, because of his pattern of excessive use of them. 

The evidence demonstrated that DeAngelis still has frequent

access to the forms. More importantly, he has daily access to

Lieutenant Cascio, who evinced a sincere interest in responding

to DeAngelis’ needs.

After carefully considering this evidence, I do not find any

threat of imminent harm to DeAngelis. DeAngelis admitted he is

satisfied with the conditions of his confinement in SPU. 

Although discussions are ongoing about moving him out of SPU, an

appropriate alternative placement has not yet been determined. 

DeAngelis conveyed at the hearing some concern and fear about

being moved out of SPU. Defendants persuaded me, however, that

his future placement is being carefully considered by various

staff members involved with DeAngelis’ treatment, and that they

will not return him to an environment where his physical or

mental health will be endangered. As things currently stand for

DeAngelis, I cannot find any basis to conclude that he is at risk

of suffering irreparable harm presently, immediately, or pending

final disposition of his underlying claims. Accordingly, I

recommend that his motions for preliminary injunctive relief,

documents no. 1 and 7, be denied.

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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 28 U.S.C. § 636(b)(1);

see also Unauthorized Practice of Law Committee 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: January 12, 2007

cc: Andrew B. Livernois, Esq.

 Michael DeAngelis, pro se

 

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