1In addition, DeAngelis broadly alleges Sixth Amendment and

state law claims but fails to provided any predicate facts in

support of those claims. I therefore construe his complaint to

allege only claims under the First, Eighth and Fourteenth

Amendments.

2Named as defendants are the following NHSP employees: Bruce

Cattell, Warden; Larry Blaisdell, Acting Warden; Greg Crompton,

Deputy Warden; Robert McLeod, Medical Director; Donna Timulty,

Medical Supervisor; nurses Tammy, Brad, Fran, Michelle and Brett

Mooney; Robert McGrath, Counselor; Lucy Bilodeau Unit Manager;

corrections officers Ross Cunningham, Morin, Hickman, Marshall,

O’Brien, Burrows, Hogan, S. Howland, Carroll and P. Cascio; Jan

Moor-Simons, Supervisory Law Librarian; and Becky Harding, Law

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 has filed an amended

complaint, pursuant to 42 U.S.C. § 1983, alleging violations

under the First, Eighth and Fourteenth Amendments1 to the United

States Constitution (document nos. 1, 8-9, 20-21 and 24). Named

as defendants are William Wrenn, Commissioner of the New

Hampshire Department of Corrections (“NHDOC”), the New Hampshire

State Prison (“NHSP”) and several NHSP employees.2

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 1 of 19
Librarian.

2

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). For the reasons stated below, I find that

DeAngelis has stated the following claims: (1) an Eighth

Amendment failure to protect claim against the NHSP, O’Brien, 

Burrows, Carroll, Hogan, Wrenn, Cattell, Crompton, Cunningham, 

Howland and the unnamed corrections officers; (2) an Eighth

Amendment denial of adequate medical care claim against MacLeod,

Michelle, Tammy, Fran, Brad, Timulty, Mooney, O’Brien, Burrows,

Carroll and Hogan; and (3) a First and Fourteenth Amendment

retaliation claim against Bilodeau, McGrath and Cascio. I

recommend dismissal of all remaining claims. 

Also filed are two declarations stating that DeAngelis has

sufficiently exhausted administrative remedies pursuant to 42

U.S.C. § 1997(e) (document nos. 8 and 21). Following an

evidentiary hearing held on January 11, 2007, his request for

preliminary injunctive relief (documents. nos. 1 and 7) was

denied (document no. 14). His subsequent request for preliminary

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 2 of 19
3

injunctive relief (document no. 15) was denied by endorsed order

on February 1, 2007. 

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). 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). This review

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988). I apply this standard in reviewing DeAngelis’

complaint.

Background

Viewing the factual allegations in the complaint in the

light most favorable to DeAngelis, the material facts are as

follows. DeAngelis is an inmate at the NHSP who has been

confined to the Secured Psychiatric Unit (“SPU”) since

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 3 of 19
4

approximately September 18, 2006. Prior to DeAngelis’

confinement in the SPU, prison officials allegedly subjected him

to various constitutional deprivations in violation of his

federally protected rights under the First, Eighth and Fourteenth

Amendments. DeAngelis alleges that prison officials failed to

protect him from attack by other inmates, denied him adequate

medical care and denied him due process during a disciplinary

hearing. He further alleges that prison officials retaliated

against him for filing administrative grievances and denied him

meaningful access to the courts. He now brings this action

pursuant to Section 1983, alleging that defendants’ acts and

omissions rise to the level of constitutional deprivations.

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In

order to be held liable for a violation under Section 1983, a

defendant’s conduct must have been a cause in 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

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 4 of 19
5

(1st Cir. 1997). The premise of DeAngelis’ Section 1983 action

is that prison officials subjected him to the following

constitutional deprivations in violation of his rights under the

First, Eighth and Fourteenth Amendments to the United States

Constitution. 

A. Failure to Protect

DeAngelis alleges that on two occasions, defendants abridged

his Eighth Amendment rights by placing him in danger and failing

to protect him from an attack by other inmates. 

Prison officials have an obligation to protect prisoners

from violence at the hands of other prisoners. See Farmer v.

Brennan, 511 U.S. 825, 833 (1994) (citation omitted). “It is

not, however, every injury suffered by one prisoner at the hands

of another that translates into constitutional liability for

prison officials responsible for the victim’s safety.” Id.

“Rather, liability attaches only when two requirements are met”. 

Espaillat v. Mousseau, Civ. No. 03-338-SM, 2004 WL 2915287, slip

op. at *2 (D.N.H. Dec. 16, 2004). First, the alleged deprivation

must be objectively serious, that is, showing that the inmate is

incarcerated under conditions posing a substantial risk of

serious harm. See Burrell v. Hampshire County, 307 F.3d 1, 7-8

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 5 of 19
6

(1st Cir. 2002) (citation omitted). Second, the official

involved must have had a sufficiently culpable state of mind,

described as “deliberate indifference” to inmate health or

safety. Id. “[A] prison official ‘cannot be found liable . . .

for denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from

which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.’” 

Espaillat, Civ. No. 03-338-SM, 2004 WL 2915287, slip op. at *2

(citing Farmer, 511 U.S. at 837).

Here, DeAngelis alleges that on December 21, 2005, he was

attacked by another inmate “on the R & D recreation” area and

sustained physical and mental injuries. The following defendants

allegedly failed to protect him and failed to provide adequate

supervision to ensure his safety: O’Brien; Burrows; Carroll;

Hogan; Wrenn; Cattell; Crompton; and Cunningham. DeAngelis

further alleges that on September 25, 2006, he was attacked by

another inmate and sustained additional physical and mental

injuries. Howland and “other unknown officers” allegedly failed

to protect him and failed to provide adequate supervision to

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 6 of 19
3If DeAngelis wishes to pursue claims against the unnamed

corrections officers, he will have to obtain the defendants’ full

names through discovery and appropriately move to amend the

complaint. He can serve the named defendants with

interrogatories to obtain the full names of the unnamed

defendants 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.

DeAngelis is further instructed to forward a summons to this

Court with each defendant’s proper name.

7

ensure his safety. The record is silent as to the nature and

extent of the injuries sustained by DeAngelis during each attack.

If true, these allegations state cognizable Eighth Amendment

claims against, premised on the failure to protect, against

O’Brien; Burrows; Carroll; Hogan; Wrenn; Cattell; Crompton;

Cunningham; Howland and the unnamed corrections officers3.

B. Denial of Adequate Medical Care

DeAngelis alleges that defendants abridged his Eighth

Amendment rights by denying him prescribed medications and

adequate medical care. He further alleges that defendants

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 7 of 19
8

punished him for requesting his prescribed medications.

To state an Eighth Amendment claim premised on inadequate

medical care, “a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to

serious medical needs.” See Estelle, 429 U.S. at 97. In order

to be found deliberately indifferent, a prison official “must

both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also

draw the inference.” Id. Deliberate indifference may be

manifested by prison doctors in their response to the prisoner’s

needs or by prison personnel “intentionally denying or delaying

access to medical care or intentionally interfering with the

treatment once prescribed.” Id., at 104-05. 

“A ‘serious medical need’ is 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.’” See Mahan v. Plymouth County House of

Corrections, 64 F.3d 14, 17-18 (1st Cir. 1995)(quoting Gaudreault

v. Salem, 923 F.2d 203, 208 (1st Cir. 1990). 

Here, DeAngelis has alleged sufficient facts to state an

Eighth Amendment claim for the denial of adequate medical care. 

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 8 of 19
9

First, he has described serious medical needs, including high

blood pressure, asthma and acid reflux disease, for which he has

been prescribed medications. See Garvin v. Armstrong, 236 F.3d

896, 898 (7th Cir. 2001)(holding that “asthma, depending upon its

degree, can be a serious medical need” under the Eighth

Amendment); Lyerly v. Koenigsmann, No. 04 Civ. 3904 (PKC), 2006

WL 1997709 at *5 (S.D.N.Y. July 17, 2006)(finding asthma to

constitute a sufficiently serious medical condition under the

Eighth Amendment). See also Pandey v. Freedman, 66 F.3d 306,

1995 WL 568490 at *3 (1st Cir. 1995) (unpublished) (holding that

“the denial of prescribed medication (for diabetes and high blood

pressure) could constitute a sufficiently serious harm” but

concluding that “the complaint fails to allege facts which would

support a finding of ‘deliberate indifference.’”). See also Cole

v. Litscher, No. 04-C-116-C, 2005 WL 1075515 at *6 (W.D. Wis. May

6, 2005) (holding high blood pressure to constitute a serious

medical need under the Eighth Amendment). See also Halpin v.

Simmons, 33 Fed. Appx. 961, 2002 WL 700936 at *2 (10th Cir. 2002)

(unpublished) (holding that allegations of “failure to take

reasonable steps to treat [prisoner’s] acid reflux, hernia and

water retention, and to accommodate his health-related and

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 9 of 19
10

dietary and exercise needs” are sufficient to state an Eighth

Amendment claim). The denial of high blood pressure medication

allegedly has caused DeAngelis impaired vision, dizziness and

other complications.

Second, DeAngelis has demonstrated deliberate indifference

with respect to the defendants by alleging that once they had

knowledge of his serious medical needs, they nevertheless denied

him adequate care or failed to ensure that he received proper

care. From June 24, 2006 through July 28, 2006, DeAngelis

allegedly was denied prescribed medications by MacLeod, Michelle,

Tammy, Fran, Brad, Timulty and Mooney. Construed liberally, the

complaint alleges that each defendant had knowledge of 

DeAngelis’ medical condition but nevertheless denied his repeated

requests for prescribed medications. As a result of defendants’

actions, DeAngelis allegedly suffered physical and mental injury.

Without identifying a defendant, DeAngelis further alleges

that he was twice denied prescribed medications and medical

treatment during sick call. He also alleges that on December 26,

2006, O’Brien, Burrows, Carroll and Hogan denied him medical

attention when he “called medical emergency” due to “dizziness

and high blood pressure.” On that day, O’Brien, Burrows, Carroll

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 10 of 19
4DeAngelis has not provided the last names of four

defendants: Michelle; Tammy; Fran; and Brad. As explained

previously, if he wishes to pursue claims against the improperly

named defendants, he will have to obtain their full names through

discovery, pursuant to Fed. R. Civ. P. 33(a), and appropriately

move to amend the complaint. DeAngelis is further instructed to

forward a summons to this Court with each defendant’s proper

name.

11

and Hogan allegedly punished DeAngelis for requesting medications

to treat his high blood pressure. Instead of providing the

requested medications, defendants allegedly issued a disciplinary

report against DeAngelis, stripped him of his clothing, denied

him food and placed him in a cold holding tank.

If true, the above allegations may demonstrate that

defendants prevented DeAngelis from receiving prompt and

essential dental treatment for a serious condition. Accordingly,

I conclude that DeAngelis has stated sufficient facts for an

Eighth Amendment claim premised upon the denial of adequate

medical care against MacLeod, Michelle, Tammy, Fran, Brad,

Timulty, Mooney, O’Brien, Burrows, Carroll and Hogan.4

C. Denial of Due Process

DeAngelis alleges that Morin abridged his Fourteenth

Amendment right to due process by denying him the opportunity to

present witnesses and evidence during a disciplinary hearing. 

The Fourteenth Amendment guarantees that no State shall

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 11 of 19
12

“deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV. In order to assert a

Fourteenth Amendment due process claim, a plaintiff must allege

that he was deprived of a liberty interest protected by the

Constitution or by state law. Wolff v. McDonnell, 418 U.S. 539,

556 (1974) (citing Haines v. Kerner, 404 U.S. 519 (1972); 

Dominique v. Weld, 73 F.3d 1156, 1158 (1st Cir. 1996). In order

to state a due process violation in the context of a disciplinary

hearing, therefore, a prisoner must identify a liberty interest

of which he was deprived. See Sandin v. Conner, 515 U.S. 472,

483-84 (1995). Such a liberty interest is, generally, “freedom

from restraint which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the Due

Process Clause of its own force, nonetheless imposes atypical and

significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Id. at 484 (internal citations

omitted). 

In this action DeAngelis, a sentenced inmate at the NHSP,

alleges that during the course of his disciplinary hearing, Morin

denied him the opportunity to present witnesses and evidence. 

Subsequently, DeAngelis was found guilty of the disciplinary

infraction “not standing for count” for which he was sanctioned 

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 12 of 19
13

to “5 days in punitive segregation suspended for ninety days” and

the loss of canteen privileges for 15 days. Despite DeAngelis’

assertions to the contrary, the record does not reveal that the

sanctions imposed were so severe that they were not a typical and

reasonably foreseen part of prison life. Accordingly, I find

that DeAngelis has not alleged a liberty interest of which he was

deprived and therefore conclude that he has failed to state a

cognizable Fourteenth Amendment due process claim against Morin.

D. Retaliation

DeAngelis alleges that Bilodeau and McGrath threatened him

with a prison transfer and punitive segregation, restricted his

access to grievance forms and interfered with his mail, all in

retaliation for his filing of administrative grievances. He

further alleges that Cascio retaliated against him by filing a

false disciplinary report.

To prevail on a retaliation claim, an inmate must show: (1)

conduct which led to the alleged retaliation was constitutionally

protected; (2) that he suffered some adverse action at the hands

of prison officials; and (3) that his constitutionally protected

conduct was a substantial or motivating factor in the decision to

discipline him. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001). It is well-established that prisoners have a First

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 13 of 19
14

Amendment right to petition the government for redress of

grievances, and prison officials may not retaliate against

prisoners for exercising that right. See Shabazz v. Cole, 69 F.

Supp. 2d 177, 197 (D. Mass. 1999). See also Walker v. Thompson,

288 F.3d 1005, 1008-09 (7th Cir. 2002) (holding that inmates are

entitled under the First Amendment to file grievances and

lawsuits, and officers may not retaliate against them for

exercising that right).

Here, DeAngelis alleges that Bilodeau and McGrath threatened

him with a prison transfer and punitive segregation, restricted

the number of grievance he was allowed to file, photocopied his

grievances and opened and read his mail, all in retaliation for

his filing of administrative grievances. He further alleges that

Cascio filed a false disciplinary report against in retaliation

for his filing an administrative grievance. Construed liberally,

the complaint alleges that DeAngelis engaged in constitutionally

protected conduct through the filing of administrative

grievances. DeAngelis further alleges that defendants’

retaliatory actions were motivated by his filing of

administrative grievances and therefore were taken against him in

reprisal for his exercise of First Amendment freedoms. Accepting

DeAngelis’ allegations as true, which I must do at this

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 14 of 19
15

preliminary stage of the proceedings, I conclude that he has

stated a cognizable First and Fourteenth Amendment retaliation

claim against Bilodeau, McGrath and Cascio.

E. Denial of Meaningful Access to the Courts

DeAngelis alleges that McGrath, Bilodeau, Harding, MoorSimons, Wrenn and Cattell denied him meaningful access to the

courts in violation of his Fourteenth Amendment right to due

process. Specifically, he alleges that McGrath and Bilodeau

denied him grievance forms and also opened, read, photocopied and

confiscated his privileged mail outside of presence. Harding,

Moor-Simons, Wrenn and Cattell allegedly denied him photocopies

of legal documents. 

“There is a fundamental constitutional right of access to

the courts, founded both in the First Amendment guarantee of

[the] right to petition for redress of grievances, and in the due

process clause which assures that no person will be denied the

opportunity to present to the courts their claims concerning

violations of fundamental constitutional rights.” McDuffy v.

Koval, 226 F. Supp. 2d 541, 548 (D. Del. 2002)(citations

omitted). The right of access to the courts is strongest in the

context of constitutional claims and other civil rights actions. 

See BreMiller v. Cleveland Psychiatric Inst., 898 F. Supp. 572,

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 15 of 19
16

582 (N.D. Ohio 1995). To establish a claim for denial of access

to the courts, a plaintiff must show that he was denied access to

the courts and suffered actual injury, such as interference with

his efforts to pursue a claim. See McDuffy, 226 F. Supp. 2d at

548.

Accepting DeAngelis’ allegations as true, I conclude that he

has failed to allege any relevant actual injury that resulted

from the alleged denial of access to the courts. While he claims

that defendants interfered with his privileged mail and denied

him grievance forms, DeAngelis has not alleged any ensuing

constitutional harm related to the acts or omissions by any of

the defendants. Nor has he identified any act or omission by any

defendant that frustrated or impeded a specific legal claim

pursued by DeAngelis. Without demonstrating that defendants’

alleged interference prevented him from participating

meaningfully in the legal process, DeAngelis fails to allege any

constitutional deprivation. Accordingly, I recommend dismissal

of this claim in its entirety.

II. Official Capacity Claims

Construed liberally, the complaint seeks declaratory,

injunctive and monetary relief for wrongs committed by the

defendants as state actors in their official capacities. It is

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 16 of 19
17

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 under Section

1983. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 144 (1993) (absent waiver, neither a State

nor agencies acting under its control may be subject to suit in

federal court); Will v. Michigan Dep’t of State Police, 491 U.S.

58, 71 (1989)(holding that neither a state nor its officials

acting in their official capacities are “persons” under Section

1983). Official capacity suits against officers of an agency are

simply “another way of pleading an action against an entity of

which an officer is an agent.” Monell, 436 U.S. at 690 n.55. To

the extent DeAngelis brings official capacity claims for monetary

relief against the defendants, all of whom are officials or

employees of the NHDOC or NHSP, I recommend that those claims be

dismissed. 

On the other hand, official capacity actions against state

actors for prospective injunctive relief are not treated as

actions against the state and may be considered under Section

1983. See Will, 491 U.S. at 71 n.10; Ex parte Young, 209 U.S.

123, 159-60 (1908). Thus, DeAngelis is not barred from bringing

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 17 of 19
18

claims for prospective injunctive relief against the defendants

in their official capacities.

Conclusion

For the reasons stated above, I find that DeAngelis has

stated the following claims: (1) an Eighth Amendment failure to

protect claim against the NHSP, O’Brien, Burrows, Carroll, Hogan,

Wrenn, Cattell, Crompton, Cunningham, Howland and the unnamed

corrections officers; (2) an Eighth Amendment denial of adequate

medical care claim against MacLeod, Michelle, Tammy, Fran, Brad,

Timulty, Mooney, O’Brien, Burrows, Carroll and Hogan; and (3) a

First and Fourteenth Amendment retaliation claim against

Bilodeau, McGrath and Cascio. I recommend dismissal of all

remaining claims. 

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

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

plaintiff disagrees with the identification of the claims herein,

plaintiff must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

moving to amend the complaint. 

Any further objections to this report and recommendation

must be filed within ten (10) days of receipt of this notice. 

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 18 of 19
19

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); 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: April 30, 2007

cc: Michael DeAngelis, pro se

Case 1:06-cv-00376-JL Document 26 Filed 04/30/07 Page 19 of 19