1Mandeville names the following eleven Merrimack County

House of Corrections employees or subcontractors as defendants to

this action: Superintendent Carole A. Anderson, Assistant

Superintendent Richard Doucette, Captain Croft, Sargeant

Jardullo, Sargeant Robinson, Corporal Stalker, Corrections

Officers Prentiss and Twining, Nurse Carol French, Physician’s

Assistant Henry Symonds, and Dr. James Trice. In addition to

these named defendants, Mandeville has asserted claims against

the following defendants in the body of his complaint: Nurses

Glynnis Poisson and Judy Figueroa, Sargeant Struven, and

Corrections Officers Saucier, Mayo, Lewko, Unite and Andrade.

2Mandeville is now an inmate at the New Hampshire State

Prison.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Mark Mandeville

v. Civil No. 05-cv-092-PB

Carole Anderson, et al.1

REPORT AND RECOMMENDATION

Proceeding pro se and in forma pauperis, Mark Mandeville

filed a complaint (document no. 4) under 42 U.S.C. § 1983

alleging that during his pretrial incarceration at the Merrimack

County House of Correction (“MCHC”)2 he was denied a number of

his constitutional rights by MCHC employees, including, among

others, his right to adequate medical care, his right to humane

Case 1:05-cv-00092-JD Document 6 Filed 07/21/05 Page 1 of 34
2

conditions of confinement, and his right to be protected from

harm during his incarceration. The complaint is before me for

preliminary review to determine whether, among other things, it

states any claim upon which relief may be granted. See 28 U.S.C.

§ 1915A; United States District Court for the District of New

Hampshire Local Rule (“LR”) 4.3(d)(2).

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 prepare a report and recommendation determining whether the

complaint or any portion thereof should be dismissed because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state 

a claim 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).

LR 4.3(d)(2). 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

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3

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). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background

Mandeville was held as a pretrial detainee at the MCHC

between February 17, 2001 and March 20, 2003. He alleges that

during that time he was denied appropriate care and treatment for

serious medical problems, he was abused and harassed by the

correctional staff, he was denied the basics of personal hygiene,

he was frequently denied the use of a wheelchair even though he

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4

was unable to walk, and he was made to suffer unconstitutionally

inhumane conditions of confinement. 

Facts Regarding Medical Care

When Mandeville arrived at the MCHC, he was initially housed

in “The Hole,” a day room often used as punitive housing at the

jail. Within two weeks of his arrival, Mandeville fell while

trying to get into his top bunk. Mandeville states he woke up on

the floor in a pool of blood from a profusely bleeding head

wound. Mandeville attempted to contact correctional staff by

pushing an intercom button. When he got no response after one

minute, he pushed the buzzer again. The officer who answered the

intercom threatened to write Mandeville up for a disciplinary

violation for pressing the button too many times. Several more

minutes passed until an officer finally inquired to see what the

problem was. Mandeville explained the situation and was told to

wait. A full hour later, officers arrived to take Mandeville to

the infirmary, where the wound on his head was closed by the

nurse with butterfly bandages and gauze pads.

During the late fall and winter of 2001, Mandeville alleges

that he was forced by correctional staff to move into a bed that

had recently been vacated by an inmate known to have scabies. 

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5

Although the officers allowed Mandeville to briefly clean and mop

the cell before he moved into it, he immediately became infected

with scabies himself. The nurses improperly diagnosed the

scabies as a rash and prescribed oral antibiotics. The incorrect

diagnosis and treatment resulted in Mandeville not being able to

sleep well, concentrate, relax or function normally for

approximately three months until the situation was properly

diagnosed.

On April 3, 2002, Mandeville was experiencing severe pain in

his hip and had a mask-like butterfly-shaped area of flaking skin

on his face. Mandeville saw a nurse who told him he might have

lupus, which became the MCHC medical staff’s working diagnosis of

Mandeville’s condition for seven weeks. As a result,

Mandeville’s actual diagnosis, arthritis, was not properly

diagnosed or treated in a timely manner, and his pain became

excruciating as a result. Mandeville’s knees, hands and feet

swelled significantly, and all of his fingernails and toenails

fell off. It became almost impossible for Mandeville to walk due

to the pain in his knee and hip joints, and he became virtually

immobilized without the use of a wheelchair.

On April 9 and 10, 2002, Mandeville finally had blood work

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6

done and x-rays taken. He was denied hot packs, ibuprofen, and

Ultrim, another pain medication, during that week. On April 14,

2002, an unnamed correctional officer threatened Mandeville with

a disciplinary write-up if he asked for a wheelchair to go to med

call. On that date, at his 12:30 med call Nurse Carol French

denied plaintiff Ultrim. Again at his 9:30 p.m. med call, Nurse

Glynnis Poisson refused to give Mandeville ibuprofen. Mandeville

asserts that the nursing staff withheld his pain medications for

the remainder of April and part of May 2002.

During early May of 2002, Mandeville’s condition worsened. 

Mandeville was prescribed Ultrim at each med call and ibuprofen

as needed. Mandeville was by this time completely disabled and

wheelchair-bound. On May 13, 2002, French saw MCHC physician’s

assistant Henry Symonds give Mandeville four ibuprofen. French

then issued orders that Mandeville was to get ibuprofen only at

midnight, which prevented Mandeville from getting any ibuprofen

at all as there was no med call at midnight, and no member of the

corrections staff was willing to bring Mandeville to the

infirmary at midnight. At around the same time, French also

reduced Mandeville’s Ultrim dosage.

On May 22, 2002, Mandeville was taken to see Dr. Trice, who

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7

diagnosed him with severe arthritis. Trice prescribed a drug

called Methotrexate. Mandeville claims that Trice should have

ordered weekly blood tests as follow-up monitoring to insure that

Mandeville didn’t suffer from excessive bone-marrow loss, a

common side effect of Methotrexate.

After seeing Dr. Trice, Mandeville began to experience daily

fevers averaging 101 degrees and significant weight loss in a

short period of time. On June 2, 2002, Mandeville vomited all

night long but received no medical attention.

On June 21, 2002, Symonds ordered that Mandeville was to be

provided with ibuprofen and hot packs to treat his pain and

swelling at each med call. On June 22, 2002, at Mandeville’s

7:30 a.m. and 12:30 p.m. med calls, Nurse French refused to give

Mandeville hot packs.

On June 23, 2002, Mandeville was taken to the hospital with

a fever of 106 degrees. The hospital did blood tests and a lower

gastrointestinal series which revealed that Mandeville had a

suppressed bone marrow level. The doctors at the hospital

prescribed a host of medications, including: Oxycontin for pain,

Cytotec for ulcer prevention, Pepsid for acid reflux, Asisaid for

arthritis, Nu-Iron for anemia, Prevacid for stomach upset and

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8

Leucovain to replace or supplement the Methotrexate. 

Mandeville was returned to MCHC on June 27, 2002 with orders

that he be able to receive medications in his cell. On that

date, French came to his cell to give him medications and take

his temperature, but refused to give him hot packs. On July 13,

2002, French refused to give Mandeville all of his medications

and accused Mandeville of having a bad attitude toward recovery

for skipping a dose of Methotrexate the day before in an effort

to reduce his vomiting.

On September 5, 2002, Mandeville was taken to the hospital

for a blood transfusion occasioned by anemia that resulted from

the destruction of his bone marrow. Mandeville asserts that the

bone marrow loss was caused by the Methotrexate and the failure

to properly monitor Mandeville’s condition.

On October 6, 2002, Nurse Judy Figueroa forgot to order

Mandeville’s Oxycontin and blamed her oversight on another nurse. 

Instead, Figueroa gave Mandeville Tylenol. This resulted in

Mandeville experiencing horrific pain as well as severe

withdrawal symptoms. 

Facts Regarding Access to a Wheelchair and Related Issues

Inmates at the MCHC were routinely locked down for up to

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9

twenty-nine hours at a time, with four hour intervals of “outtime.” On a number of occasions, Mandeville was denied the use

of a wheelchair during out-times, which effectively denied him

out-of-cell time granted to inmates who were able to walk. These

denials resulted in the denial of Mandeville’s ability, on those

occasions, to phone his family and to engage in other activities

available to inmates who could walk. 

On April 14, 2002, Mandeville was denied the use of a

wheelchair during forty minutes of out-time. On May 15, 2002,

Mandeville requested the use of a wheelchair for his 9:30 p.m.

med call. At French’s direction, the wheelchair was denied and

Mandeville was forced to crawl on the floor to get his

medications while inmates laughed at him and the corrections

officer on duty and French watched. French then refused to

provide Mandeville’s medication and instead directed officers to

get a wheelchair and bring Mandeville to the reception area near

the infirmary. Once there, French proceeded to berate Mandeville

while correctional staff surrounded him. French demanded that

Mandeville stand and walk to her in order to get his meds, and

threatened that he would be sent to “The Hole” without his

medications if he did not follow her instructions. Mandeville

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10

was forced to hobble over to French in order to get his

medication.

On June 27, 2002, French denied Mandeville the use of a

wheelchair. On July 2, 2002, Sgt. Struven denied Mandeville the

use of a wheelchair. 

On August 19, 2002, Mandeville’s attorney called to discuss

Mandeville’s court appearance scheduled for the next day. 

Mandeville was denied a wheelchair, however, and was unable to

take the call. 

On August 20, 2002, Mandeville was denied a wheelchair

during his entire out-time. On August 30, 2002, Mandeville was

denied a wheelchair for ninety minutes. Sgt. Jardullo denied

Mandeville the use of a wheelchair from September 2 to September

3, 2003. On September 5, 2002, C.O. Prentiss denied Mandeville a

wheelchair for four hours. On September 7, 2002, C.O. Saucier

denied Mandeville a wheelchair for more than two and a half hours

during out-time. On September 11, 2002, Mandeville was denied a

wheelchair for ninety minutes of out-time. On September 14,

2002, Mandeville was denied a wheelchair for all of out-time. On

September 19, 2002, Mandeville was denied a wheelchair in time to

call his attorney prior to his September 20, 2002 court

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11

appearance. On September 22, 2002, Mandeville was denied a

wheelchair for 55 minutes of out-time. 

Mandeville would often receive a wheelchair to take a shower

but have it taken while he was still using it. On September 24,

2002, Mandeville was given a wheelchair, which was then taken for

an hour and returned for med call, only to be taken again while

Mandeville was in line for his medication. 

On Septmber 27, 2002, Mandeville was brought a wheelchair

two hours into out-time. On October 2, 2002, Mandeville was

denied a wheelchair for an hour. On October 4, 2002, officers

Twining, Jardullo and Stalker forced Mandeville to miss a halfhour of his family visit by delaying his receipt of a wheelchair. 

On October 5, 2002, Twining delayed Mandeville’s receipt of a

wheelchair for one hour and fifteen minutes of out-time. On

October 9, 2002, Corporal Stalker and C.O. May denied Mandeville

a wheelchair for all but fifteen minutes of out-time. On October

11, 2002, Mandeville was denied a wheelchair for three out of

four hours of out-time.

On October 24, 2002, Mandeville was permanently assigned a

wheelchair, more than six months after he first started to need

the regular use of a wheelchair in order to be mobile. 

Case 1:05-cv-00092-JD Document 6 Filed 07/21/05 Page 11 of 34
12

Nevertheless, the wheelchair denials continued. On November 8,

2002, Stalker caused Mandeville to miss forty-five minutes of a

family visit by delaying access to a wheelchair. On January 27,

2003, C.O. Unite took Mandeville’s wheelchair and didn’t return

it until the end of out-time, which resulted in Mandeville not

being able to call his family at all during that out-time.

Facts Regarding Conditions of Confinement and Harassment

Mandeville was frequently denied toilet paper, showers, and

clean sheets. On April 14, 2002, multiple officers denied

Mandeville’s request for toilet paper. In late May and early

June of 2002, Mandeville was denied access to a handicap shower

for seven days despite repeated requests to shower. In late June

and early July, Mandeville was denied a shower for five days. 

Mandeville was also denied clean sheets despite the fact that

both vomiting and profuse sweating were symptoms of his illness

or side-effects from his medication and, as a result, his sheets

were extremely unhygienic.

On July 8, 2002, Symonds approved handicap showers at the

infirmary for Mandeville, but French prevented Mandeville from

using the shower, stating that his use of the shower would make

the hallway too hot for Symonds. At the end of July 2002,

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13

Mandeville was denied showers for a week. In August of 2002,

Mandeville was denied showers on many occasions despite extremely

hot temperatures. From September 16 through September 19 2002,

Mandeville was denied showers. 

In September of 2002, clean sheets were still regularly

being withheld from Mandeville. On September 28, 2002,

Mandeville requested sheets from Jardullo, claiming that his

profuse sweating had caused him to have a rash. Jardullo checked

his rash, but refused to give him clean sheets, stating “Too bad. 

This is jail.”

On October 5, 2002, Prentiss denied Mandeville clean sheets. 

Prentiss also refused to allow Mandeville to go to med call

unless Mandeville put on both of his size 8 1⁄2 shoes, although

Mandeville had for months been wearing a shower shoe on his right

foot, which had swelled to a size twelve. Putting on his shoes

caused Mandeville a great deal of pain. 

On October 13, 2002, Mandeville, as was customary at the

MCHC to signal that he needed privacy to use the toilet, had put

up a piece of cardboard covering half his window. C.O. Prentiss

saw the cardboard and responded by opening Mandeville’s door all

the way so that he could be seen on the toilet by all the

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14

inmates. Prentiss then laughed at Mandeville and said “There is

no privacy in jail.” Mandeville requested to see the shift

supervisor on duty, Cpl. Mills, but Mills defended Prentiss’

actions as being in accord with prison rules that inmates be

required to use the toilet without privacy.

During October of 2002, Mandeville had trouble getting

toilet paper when he needed it. On December 12, 2002, C.O.

Saucier denied Mandeville a shower. 

On December 16, 2002, C.O. Lewko announced that Mandeville

had two pieces of mail. Lewko left Mandeville’s unit, however,

without giving Mandeville the mail.

In late December of 2002, Mandevile alleges that there was

no heat in any of the MCHC cells, only in the adjoining day

rooms. On December 31, the heat was turned on only long enough

for a maintenance worker to take readings, and then was promptly

turned off for the rest of the night. The heat remained off

continuously into late January of 2003.

On January 31, 2003, at 6:00 a.m., C.O. Andrade announced

over the intercom that Mandeville would have to get up, walk to,

and push the intercom button in his cell to receive his meds. On

February 2, 2003, the same thing happened, and Andrade threatened

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15

Mandeville with a disciplinary write-up if he did not get up and

push the button. In February and March of 2003, Mandeville was

at times denied showers by Prentiss, Mayo, Unite and Jardullo.

Facts Regarding Endangerment/Failure to Protect

On July 2, 2002, Sgt. Struven called a lockdown on

Mandeville’s unit during out-time so that French could bring

Mandeville his medication. Struven then announced to the entire

unit that the lockdown was caused by Mandeville’s need to get

medications. Mandeville alleges that this announcement was

designed to create animosity, hostility, and possibly even danger

to Mandeville from the other inmates. On July 3, 2002, Sgt.

Jardullo did the same thing that Struven had done the day before,

locking down the unit and announcing to inmates that Mandeville

was to blame.

On December 23 and 24, 2002, Mandeville was in too much pain

to get his medications at med call. The correctional staff

locked down the unit in order to allow the nurse to deliver the

medication to Mandeville’s cell. The staff then advised the

inmates that the lockdown was Mandeville’s fault.

Mandeville alleges that during his stay at MCHC, as part of

a pattern of torment by correctional staff, he was placed in

Case 1:05-cv-00092-JD Document 6 Filed 07/21/05 Page 15 of 34
16

cells with undesirable inmates. While Mandeville describes some

characteristics of his cellmates that he found undesirable, he

did not state that any of his cell mates ever harmed or

threatened to harm him in any way.

Facts Regarding the MCHC Administration’s Response

Mandeville did not suffer in silence. He attempted to bring

his complaints to Captain Croft, Superintendent Anderson and

Assistant Superintendent Doucette. On May 22, 2002, Mandeville

met with Croft who assured him that he would no longer be

threatened with “The Hole” or a loss of medication by the medical

staff.

On August 26, 2002, Mandeville received bad news regarding

his legal situation and advised the officer on duty that he was

too upset to get his medication. A few minutes later, the

officer advised Mandeville that Sgt. Robinson had threatened to

pepper spray Mandeville if he did not use his wheelchair to come

to med call. Mandeville got into the wheelchair, but instead of

taking him to med call, Robinson took Mandevile to see

Superintendent Anderson regarding his complaints about the staff

tormenting him in various ways. Anderson promised Mandeville

that the abuse would end and that she would meet with him every

Case 1:05-cv-00092-JD Document 6 Filed 07/21/05 Page 16 of 34
17

seven to ten days. Mandeville claims that neither promise was

kept. 

On September 5, 2002, Mandeville wrote to Anderson to tell

her that nothing had changed. On September 6, 2002, Mandeville

met with Doucette, who also promised that Mandeville would be

able to meet with Doucette or Anderson every one to two weeks. 

That promise was not kept. 

On September 17, 2002, Mandeville again wrote to Anderson to

complain about the conditions of his confinement. On September

20, Anderson responded that Mandeville could schedule weekly

shower times in the handicap shower. Mandeville asserts that

non-disabled inmates are afforded daily showers. On September

23, 2002, Anderson authorized daily showers for Mandeville but

would not authorize the use of a wheelchair for those showers on

the grounds that the wheelchair could be used as a weapon, which

resulted in Mandeville being unable to get to his authorized

shower as he was wheelchair-bound.

Discussion

1. Claims Barred by the Statute of Limitations

Congress did not provide a statute of limitations for § 1983

actions, so federal courts must borrow the personal injury

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18

limitations period and tolling provisions of the forum state. 

See Wilson v. Garcia, 471 U.S. 261, 276-80 (1985); Lopez-Gonzalez

v. Municipality of Comerio, 404 F.3d 548, 551 (1st Cir. 2005). 

In New Hampshire, all personal actions, other than slander and

libel, are governed by N.H. Rev. Stat. Ann. (“RSA”) 508:4 I,

which provides a three-year limitations period. See RSA 508:4 I

(Supp. 1997). Mandeville alleges that his rights were violated

by the defendants in incidents that occurred in February and

March of 2001 regarding a head injury, scabies, and an improper

housing assignment. This suit was not filed until March 11,

2005, approximately four years after these incidents occurred. 

Because this suit was not filed within the three-year time limit

available to commence this action, I recommend that these three

claims be dismissed from the complaint.

2. Inadequate Medical Care Claims

To state a cause of action under § 1983 premised on

inadequate medical care, a plaintiff must allege facts which

demonstrate that the defendants acted with deliberate

indifference to his serious medical needs. Estelle, 429 U.S. at

Case 1:05-cv-00092-JD Document 6 Filed 07/21/05 Page 18 of 34
3Because Mandeville was a pretrial detainee while housed at

the MCHC, the defendants’ constitutional obligation to provide

him with adequate medical care flows from the Fourteenth

Amendment’s Due Process Clause, rather than the Eighth

Amendment’s prohibition against cruel and unusual punishment. 

Bell v. Wolfish, 441 U.S. 520, 555 (1979). 

19

106; Bean v. Cunningham, 650 F. Supp. 709, 713 (D.N.H. 1986).3

Deliberate indifference may be manifested by prison medical

personnel in their response to a prisoner’s needs or by prison

personnel “intentionally denying or delaying access to medical

care or intentionally interfering with the treatment once

prescribed.” Estelle, 429 U.S. at 104-05. As to the second

essential element, “[a] medical need is ‘serious’ if it 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.” Gaudreault v.

Salem, 923 F.2d 203, 208 (1st Cir. 1990). Deprivation of medical

care constitutes cruel and unusual punishment under the Eighth

Amendment only if the indifference to an inmate’s medical needs

was reckless or wanton in the criminal law sense, not merely

negligent. See Watson v. Canton, 984 F.2d 537, 540 (1st Cir.

1993). In order to allege that the MCHC has failed to provide

him with constitutionally adequate medical care, therefore,

Case 1:05-cv-00092-JD Document 6 Filed 07/21/05 Page 19 of 34
20

Mandeville must allege a “deliberate indifference” to his serious

medical needs. See Consolo v. George, 58 F.3d 791, 793-95 (1st

Cir. 1995) (explaining how the “deliberate indifference” to

serious medical needs standard for an Eighth Amendment violation

applies to pretrial detainees even though they are protected by

the due process clause of the Fourteenth Amendment); Elliott v.

Cheshire County, 940 F.2d 7, 10 (1st Cir. 1991) (“It is clearly

established . . . that jail officials violate the due process

rights of their detainees if they exhibit a deliberate

indifference to the medical needs of the detainees that is

tantamount to an intent to punish.”) (internal citations

omitted)). 

Here, Mandeville has adequately described that he has a very

serious medical condition, arthritis, and the pain and other

symptoms attendant to the arthritis, that has been identified by

medical personnel in and out of MCHC as needing significant

treatment, medication and monitoring. Mandeville has also

alleged that the nursing staff at the MCHC, particularly nurses

French, Poisson and Figueroa, have denied him necessary pain

medication, reduced his prescribed dosages of pain medication and

denied him other pain-relieving treatments. In certain

Case 1:05-cv-00092-JD Document 6 Filed 07/21/05 Page 20 of 34
21

instances, Mandeville has alleged that French actively took

measures to interfere with his treatment and increase his

suffering. 

Mandeville also names physician’s assistant Henry Symonds as

a defendant to this action. Mandeville’s allegations of

inadequate medical treatment against Symonds, however, are

limited to one instance where Symonds allegedly walked away from

Mandeville when Mandeville questioned his treatment plan. In all

of Mandeville’s discussion of Symonds’ actions toward him at the

MCHC, Mandeville fails to identify any behavior on Symonds’ part

that would indicate that Symonds deliberately failed to provide

adequate medical care for any of Mandeville’s serious medical

needs. Accordingly, I recommend that Symonds be dismissed from

this action.

Mandeville has alleged that by failing to monitor his bone

marrow levels while treating him with Methotrexate, Dr. Trice was

deliberately indifferent to Mandeville’s known and serious

medical needs, resulting in severe anemia and blood transfusions. 

Therefore, in an Order issued simultaneously with this Report and

Recommendation, I will direct that the inadequate medical care

claim be served against French, Poisson, Figueroa, and Trice. 

Case 1:05-cv-00092-JD Document 6 Filed 07/21/05 Page 21 of 34
22

3. Inhumane Conditions of Confinement Claim

To state a constitutional prison conditions violation,

Mandeville must demonstrate that he was subjected to a

deprivation that was objectively “sufficiently serious,” and that

the official who caused the deprivation was “deliberately

indifferent” to his needs. See Wilson v. Seiter, 501 U.S. 294,

298, 303 (1991); Giroux v. Somerset County, 178 F.3d 28, 32 (1st

Cir. 1999). A challenged condition of housing may be objectively

“sufficiently serious” standing alone or in combination with

other conditions, if it deprives the inmate of an identifiable,

human need. See Wilson, 501 U.S. at 304. A prison official is

“deliberately indifferent” if he is “aware of facts from which

the inference could be drawn that a substantial risk of serious

harm exists, and also draws the inference.” See Farmer v.

Brennan, 511 U.S. 825, 836-37 (1994). Thus, an Eighth Amendment

claim arises only if an official inflicts “cruel and unusual

punishment” by knowing of and disregarding “an excessive risk to

inmate health or safety.” Id. at 837, 838; Giroux, 178 F.3d at 32

(explaining how the official must have “an actual, subjective

appreciation of risk”). The need for humane, if not entirely

comfortable, conditions of confinement is particularly pointed

Case 1:05-cv-00092-JD Document 6 Filed 07/21/05 Page 22 of 34
23

for a pretrial inmate, who is not incarcerated punitively. 

Mandeville alleges that he was denied certain basic

necessities of humane living: heat in the winter, regular

showers, clean sheets and toilet paper. Mandeville has alleged

that any prison official would know that the deprivation of these

items would fall below an acceptable level of decency. He

alleges that the responsible MCHC employees are Nurse French,

officers Jardullo, Prentiss, Saucier, Mayo, and Unite and

Superintendent Anderson. Accordingly I will direct service of

the conditions of confinement claim against French, Jardullo,

Prentiss, Saucier, Unite and Anderson in an Order issued

simultaneously with this Report and Recommendation.

Mandeville also alleges that he was housed with undesirable

inmates. I find that these allegations do not give rise to a

claim that MCHC officials were aware of and deliberately

indifferent to a serious risk to Mandeville’s safety, and that

Mandeville has not otherwise alleged sufficient facts to state a

claim that placement with these roommates created

unconstitutional conditions of confinement. See Street v. Fair,

918 F.2d 269, 271-72 (1st Cir. 1990) (finding no Eighth Amendment

claim where plaintiff complained generally of being afraid after

Case 1:05-cv-00092-JD Document 6 Filed 07/21/05 Page 23 of 34
24

a threat with no injury). Mandeville has not cited any specific

facts or described any specific circumstances which would have

given rise to a particularized duty of the corrections officials

at the MCHC to act to prevent any of the cellmate pairings

Mandeville describes in his complaint. Accordingly, I find that

Mandeville has failed to state a claim upon which relief may be

granted under § 1983 for being housed with undesirable inmates.

Mandeville further alleges that defendants Struven and

Jardullo made announcements to other inmates designed to create

animosity and hositility toward Mandeville, and in doing so,

placed him in jeopardy. Mandeville alleges that this type of

verbal harassment and endangerment entitles him to some relief

from this Court because it was intended to create a hazardous

living condition for him during his incarceration.

The safety and security of all prisoners is protected by the

Constitution. See e.g., Youngberg v. Romeo, 457 U.S. 307, 315

(1982). As previously discussed, to state a constitutional

prison conditions violation, Mandeville must demonstrate that he

was subjected to a deprivation that was objectively “sufficiently

serious,” and that the official who caused the deprivation was

“deliberately indifferent” to his needs. See Wilson, 501 U.S. at 

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298, 303; Giroux, 178 F.3d at 31. Mandeville alleges that

Struven and Jardullo acted in such a way as to place him in clear

danger of being victimized by other inmates. Construing the

complaint liberally, it is not unreasonable to find, for purposes

of preliminary review, that the statements made by the officers,

if true, jeopardized Mandeville’s safety at the MCHC. It is also

reasonable to assume that such an effect would not only create a

serious risk to his safety, but that such risk was known to and

deliberately taken by the officers involved. Therefore, I find

that Mandeville’s inhumane conditions of confinement claim has

been sufficiently stated against Struven and Jardullo to allow it

to proceed against them at this time, and I will so direct in an

Order issued simultaneously with this Report and Recommendation.

4. Deprivation of Wheelchair Claim

Mandeville alleges that on many occasions he was confined

without access to a wheelchair after he became largely or

entirely dependent on a wheelchair for his mobility. A

challenged condition of confinement may be objectively

“sufficiently serious” standing alone or in combination with

other conditions, if it deprives the inmate of an identifiable,

human need. See Wilson, 501 U.S. at 304. The ability to move

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from one place to another is reasonably construed as an

identifiable human need. Although not every single deprivation

of the use of a wheelchair for a limited period of time is likely

to rise to the level of a constitutional violation, for purposes

of preliminary review, I find that Mandeville has sufficiently

stated frequent and disruptive deprivations of the use of a

wheelchair by MCHC employees, Stalker, French, Struven, Prentiss,

Saucier, Anderson, Twining, Mayo, Unite, and Andrade, to allow

this claim to proceed against those defendants at this time, and

I will so direct in the Order issued simultaneously with this

Report and Recommendation.

5. ADA Claim

Title II of the Americans With Disabilities Act (“ADA”), 42

U.S.C. § 12132, states that no “qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” Jails and prisons are

“public entities” covered by Title II of the ADA, as they fall

squarely into the statutory definition which includes “any

department, agency, special purpose district, or other

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instrumentality of a State or States or local government.” See

Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998). The

provision of a means of mobility, showers, phone and personal

visits with loved ones, and access to phone calls with one’s

attorney are, arguably, “benefits” or “services” of a jail. 

Mandeville has alleged that he is disabled and that he has been

deprived of these benefits and services by virtue of his

disability. Construing these assertions as true, I find that

Mandeville has alleged the necessary elements of an ADA claim

against defendants Stalker, French, Struven, Prentiss, Saucier,

Anderson, Twining, Mayo, Unite, Andrade, Jardullo, and Anderson

and I will direct that it proceed against them in the Order

issued simultaneously with this Report and Recommendation.

6. Harassment and Abuse Claims

Mandeville alleges that he was subject to a pattern of

abuses that were designed to harass and torment him. Mandeville

does not identify any reason why the correctional staff might be

particularly hostile to him. In general, nonphysical abuse or

harassment does not invoke constitutional protection. See

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

(citing authority to explain that racial slurs and verbal threats

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do not violate a prisoner’s constitutional rights). Accordingly,

to the extent that Mandeville attempts to state a claim based on

his subjection to general abuse and harassment, I recommend the

claim be dismissed. It further appears that Mandeville is

attempting to state a claim under the Equal Protection Clause of

the Fourteenth Amendment, implying that the harassment was the

result of his status as an inmate with a disability. Isolated

instances of name-calling and verbal harassment, by themselves,

will not support an equal protection claim. See DeWalt v.

Carter, 224 F.3d 607, 612 (7th Cir. 1999). Thus, even presuming

that the facts Mandeville alleges are true, these assertions,

while describing unprofessional and reprehensible conduct on the

part of the offending officers, fail to establish an Equal

Protection violation. Accordingly, I recommend that both the

Equal Protection and generalized harassment claims raised by

Mandeville be dismissed.

7. Mail Claim

Mandeville has alleged that on one occasion his mail was

withheld from him by Officer Lewko at the MCHC. Even assuming

that Lewko was responsible for the failure to see that two pieces

of mail reached Mandeville’s hands, Mandeville has stated neither

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how he was damaged by this action nor that the incident was more

than a unique error. I cannot from the facts presented, find any

reason to conclude that this act was in any way malicious or

deliberate. Accordingly, I recommend that this claim and

defendant Lewko be dismissed from this action.

8. Family Visits and Phone Contact

Mandeville alleges that some of the incidents wherein he was

deprived of a wheelchair caused him to miss portions of family

visits or to be unable to call his family during certain outtimes. To the extent that these are claims of general

deprivation of a wheelchair, I have found, above, that those

claims are able to proceed at this time. It appears that

Mandeville may have also intended to raise these issues as a

claim for the denial of contact with his family in violation of

the First Amendment and his right to intimate association. See

Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). Although

associational rights are “the most obvious of the First Amendment

rights that are necessarily curtailed by confinement,” see Jones

v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977),

pretrial detainees have been recognized as having a First

Amendment right to some telephone access. See e.g., Coronel v.

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Hawaii, 993 F.2d 882, 883 (9th Cir. 1993). 

In discussing the issue of visitational association with

family members, the First Circuit has stated:

For detainees to receive visits at regular 

intervals from loved ones and friends is a commonly 

accepted privilege; . . . and implicates, in the 

case of detainees especially, communicative as well 

as associational values protected by the first 

amendment. A refusal, therefore, to allow the 

ordinary detainee any visitation privileges or the 

laying down of capricious limitations not justified 

by considerations of jail security and order, would 

be unconstitutional.

Feeley v. Sampson, 570 F.2d 364, 372 (1st Cir. 1978) (citing

Procunier v. Martinez, 416 U.S. 396, 411-12 (1974)). Although

the Court in Feeley declined to decide definitively that a

detainee maintained an absolute constitutional right to use the

telephone to contact his immediate family, it acknowledged that

among courts applying the appropriate standard of review to the

issue “the consensus has been in favor of at least some access.” 

Id. at 374 (collecting cases). 

While Mandeville has alleged that on two occasions he was

denied a portion of his family visit, and that on one occasion he

was not able to call his family because no wheelchair was

provided to him during out-time, Mandeville’s allegations fall

short of identifying a violation of his constitutional right to

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intimate association. Mandeville does not state that he was

denied visits for any significant length of time or even that he

was ever denied an entire visit. And causing Mandeville to miss

one opportunity to place a phone call to his family cannot be

construed as sufficiently egregious to constitute a violation of

Mandeville’s constitutional right of association. I therefore

recommend that this claim be dismissed.

9. Right of Access to the Courts

Mandeville alleges that on two occasions he was denied the

ability to speak with his attorney by phone. Mandeville fails to

name any defendant responsible for this deprivation. Further, to

the extent that Mandeville intended to assert a denial of his

access to the courts occasioned by the inability to speak to his

attorney, he has failed to state any way in which his legal

status was harmed by that deprivation, which is a necessary

showing to state such a claim. Lewis v. Casey, 518 U.S. 343, 351

(1996). Accordingly, I recommend that any intended claim of a

violation of Mandeville’s right to access the courts be dimissed.

10. Supervisory Liability

Mandeville has named MCHC Superintendent Carole Anderson,

MCHC Deputy Superintendent Richard Doucette and MCHC Captain

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Croft as defendants to this suit. Mandeville has alleged that

these three MCHC supervisors were fully informed of the

difficulties Mandeville encountered at the MCHC and assured

Mandeville that they were in a position to dispossess him of

those difficulties. I assume that in addition to Anderson’s

specific deprivation of the means to obtain daily showers,

Mandeville intends to sue these individuals in their 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.” Matos v. Toledo Davila, 135

F.3d 182, 192 (1st Cir. 1998). 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 (1999). There must be “an affirmative link, whether through

direct participation or through conduct that amounts to

condonation or tacit authorization” to the violation alleged. 

Id. at 44. Here, Mandeville’s claims suffice to allege that the

supervisors in question were aware of the violations Mandeville

alleges, had the authority and ability to stop those violations

and deprivations, and did little or nothing to prevent them. 

Accordingly, I find that this complaint has sufficiently stated

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claims against Anderson, Doucette and Croft in their supervisory

capacities to allow this action to proceed against them.

Conclusion

For the reasons explained herein, I recommend dismissal of

the undesirable cellmate, harassment, Equal Protection,

deprivation of mail, right of intimate association, and right of

access to the courts claims, as well as defendants Symonds and

Lewko, from this action. In an Order issued simultaneously with

this Report and Recommendation, I allow the inadequate medical

care claim to be served on defendants French, Poisson, Figueroa,

and Dr. Trice, the inhumane conditions of confinement claims to

be served on defendants French, Jardullo, Prentiss, Saucier,

Mayo, Unite, and Anderson, the endangerment claim to be served on

defendants Struven and Jardullo, the denial of a wheelchair claim

to be served on defendants Stalker, French, Struven, prentiss,

Saucier, Anderson, Twining, Mayo, Unite, and Andrade, and the ADA

claim to be served on defendants Stalker, French, Struven,

Prentiss, Saucier, Anderson, Twining, Mayo, Uniet, Andrade,

Jardullo, and Anderson. Further I will direct that defendants

Croft, Anderson, and Doucette be served with all of the approved

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claims in their supervisory capacities. See 28 U.S.C. §

1915A(b)(1). 

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,

he must do so by objection filed within ten (10) days of receipt

of this Report and Recommendation, or he must properly move to

amend the complaint. 

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: July 21, 2005 

cc: Mark Mandeville, pro se

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