1The named defendants, in addition to Kelly A. Ayotte, are:

New Hampshire Department of Corrections Commissioner William L.

Wrenn and New Hampshire State Prison Warden Richard M. Gerry. In

the initial complaint, additional defendants were named by

plaintiff, but have been voluntarily dismissed from this action

(document no. 7).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

John A. Brooks

v. Civil No. 07-cv-411-JD

Kelly A. Ayotte, et al.1

O R D E R

John Brooks has filed this civil rights action (document no.

1) pursuant to 42 U.S.C. § 1983, alleging that the defendants

have violated his constitutional rights by subjecting him to

punitive conditions of confinement while he is a pretrial

detainee, denying him adequate medical care, and denying him

adequate access to his attorneys. The matter is presently before

the Court for a preliminary review to determine whether or not

the complaint states any claim upon which relief might be

granted, or whether the complaint, or any claim therein, should

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 1 of 15
2Also pending before this Court is Brooks’ motion for a

preliminary injunction. That matter will be addressed in a

separately issued Report and Recommendation.

2

be dismissed.2 See 29 U.S.C. § 1915A (requiring the court to

preliminarily screen any “complaint in a civil action in which a

prisoner seeks redress from a governmental entity or officer or

employee of a governmental entity.”).

Standard of Review

The federal screening statute governing complaints filed by

prisoners requires that the court review a prisoner complaint

prior to full consideration of it’s merits. See 28 U.S.C. §

1915A(a) (requiring the court to review complaint prior to

docketing, or as soon after docketing as is feasible). In

conducting the screening, the Court shall identify cognizable

claims, or dismiss the complaint, or any portion of the

complaint, that 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. See 28 U.S.C. §

1915A(b). Because this review is to be undertaken prior to the

complaint being answered, I will credit the assertions in the

complaint as true for purposes of preliminary screening. 

Applying this standard, I recite the facts alleged as follows. 

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 2 of 15
3

Background

John Brooks is a pretrial detainee presently housed in the

Special Housing Unit (“SHU”) at the New Hampshire State Prison

(“NHSP”). Brooks has been charged with capital murder, first

degree murder, and conspiracy to commit capital murder in

Rockingham County Superior Court, and is being held without bail

on those charges. Brooks’ criminal trial is presently scheduled

to commence on August 11, 2008. Rockingham County officials

housed Brooks at the Strafford County House of Corrections

(“SCHC”) between December 13, 2006 and December 13, 2007. At the

SCHC, Brooks was housed in general population, which gave him

freedom of movement for most of the day, allowed him to exercise

for 1 1⁄2 to 2 hours per day, and allowed him to access the jail

commissary. In addition, Brooks was permitted to have unlimited

access to his attorneys, both by in-person visit and by

telephone, every day between 8:00 a.m. and 8:00 p.m. 

Brooks is fifty-five years old. He has been diagnosed with

Type II diabetes, which he controls by diet, exercise and

medication. While at the SCHC, Brooks’ blood sugar level was

checked twice a day. Brooks alleges that while his blood sugar

levels were high while he was at the SCHC, he was able to control

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 3 of 15
4

them to a reasonable degree due to his access to sufficient

exercise, commissary snacks, and blood sugar testing.

On November 26, 2007, the office of the Attorney General

advised Brooks’ attorneys that it intended to have Brooks

transferred to a special “pre-death row” unit of the NHSP. 

Placement in that unit would result in Brooks being confined to

his cell for twenty-three hours per day under constant video

surveillance. The Attorney General’s office refused to provide

defense counsel with specific evidence justifying the transfer to

the NHSP and refused to negotiate a less restrictive pretrial

environment for Brooks. Instead, the Attorney General’s office

agreed to seek judicial approval for the transfer prior to

actually transferring Brooks.

On December 13, 2007, however, without first seeking

judicial approval, the Attorney General’s office had Brooks

transferred to the NHSP. Since December 13, 2007, Brooks has

been held at SHU where he is confined to his cell twenty-three

hours per day. At the SHU, Brooks has no freedom of movement,

has extremely limited access to the means to exercise, cannot

provide snacks for himself, and can only make telephone calls to

his attorneys or anyone else during the one hour per day he is

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342 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 

injured in an action at law . . . .

5

allowed to be out of his cell. In addition, Brooks’ attorney

visits are significantly restricted and require advance

appointments. 

Discussion

I. Section 1983

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. § 19833; City of Okla. City v.

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, Brooks claims that

defendants are state actors, and that they violated his federal

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6

constitutional rights. Brooks’ claims arise, therefore, under §

1983.

II. Fourteenth Amendment Claims

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)). “‘[T]he

State does not acquire the power to punish . . . until after it

has secured a formal adjudication of guilt in accordance with due

process of law.’” Martinez-Rivera v. Ramos, 498 F.3d 3, 9 (1st

Cir. 2007) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S.

239, 244 (1983) and Ingraham v. Wright, 430 U.S. 652, 671-72 n.40

(1977)). 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. The issue in evaluating

claims by a pretrial detainee, therefore, is 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).

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 6 of 15
4The claims, as identified herein, shall be considered to be

the claim raised in the complaint for all purposes. If Brooks

disagrees with the identification of the claims in this Order, he

must file a motion to amend his complaint.

7

Brooks alleges that, in violation of his Fourteenth

Amendment rights, he was: (1) confined to a small cell for

twenty-three hours a day under video surveillance, (2) denied

freedom of movement, including access to adequate exercise

facilities, (3) denied adequate medical care, (4) denied

sufficient access to the NHSP commissary snacks to control his

blood sugar, and (5) denied adequate access to his attorneys. I

will address each of these claims in turn.4

A. Conditions of Confinement

In examining Brooks’ allegations that he was subjected to

punitive conditions of confinement, I consider whether the

questioned conditions were reasonably related to a legitimate

state interest or whether the complaint adequately alleges that

they were intended instead as punishment. See Collazo-Leon, 51

F.3d at 317. Brooks alleges that he was moved from the SCHC to

the NHSP, where he was subjected to significantly more

restrictive conditions of confinement than he had been living

with at the SCHC. Brooks alleges that the transfer was made

without justification or cause. Brooks claims the Attorney

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5The Fourteenth Amendment is at least as protective of a

pretrial detainee’s right to medical and mental health care as

claims that arise under the Eighth Amendment. As plaintiff

states an Eighth Amendment claim, I find that he also states a

claim under the Fourteenth Amendment.

8

General’s office offered no specific reason for the transfer, and

did not seek or obtain court approval prior to effecting the

transfer. Brooks’ complaint alleges that his freedom of

movement, as well as his ability to exercise, purchase snacks,

and see and speak with his attorneys, among other things, were

suddenly denied to him without any grounds or due process being

provided to him whatsoever. Brooks claims that there were no

facts or circumstances, and no acts on his part, that rendered

him deserving of punishment during his pretrial confinement. 

Accordingly, I find that Brooks has stated the minimum facts

necessary to assert that he was, in fact, subjected to punitive

prison conditions, and that he can therefore state a cause of

action for a violation of his Fourteenth Amendment right not to

be subject to punishment during his pretrial detention.

B. Access to Adequate Medical Care

The Eighth Amendment protects prison inmates from prison

officials acting with deliberate indifference to their serious

medical needs.5 See Farmer v. Brennan, 511 U.S. 825, 831 (1994). 

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 8 of 15
9

To assert a viable cause of action for inadequate medical care,

an inmate must first state facts sufficient to allege that he has

a serious medical need for which adequate care has not been

provided. Farmer, 511 U.S. at 831; Rhodes v. Chapman, 452 U.S.

337, 347 (1981); Estelle, 429 U.S. at 106. The inmate must then

allege that a responsible prison official was aware of the need

or of the facts from which the need could be inferred, and still

failed to provide treatment. Estelle, 429 U.S. at 106. A

serious medical need is one that involves a substantial risk of

serious harm if it is not adequately treated. Barrett v. Coplan,

292 F. Supp. 2d 281, 285 (D.N.H. 2003); Kosilek v. Maloney, 221

F. Supp. 2d 156, 180 (D. Mass. 2002) (citing Farmer, 511 U.S. at

835-47); see also Gaudreault, 923 F.2d at 208 (defining a serious

medical need as 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.”) (internal citations omitted). 

“[A]dequate medical care” is treatment by qualified medical

personnel who provide services that are of a quality acceptable

when measured by prudent professional standards in the community,

tailored to an inmate’s particular medical needs, and that are

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 9 of 15
10

based on medical considerations. United States v. DeCologero,

821 F.2d 39, 42-43 (1st Cir. 1987). This does not mean that an

inmate is entitled to the care of his or her choice, simply that

the care must meet minimal standards of adequacy. Deliberate

indifference may be found where the medical care provided is “so

clearly inadequate as to amount to a refusal to provide essential

care.” Torraco, 923 F.2d at 234. Constraints inherent in a

prison setting may affect the choice of care provided, and may be

relevant to whether or not prison officials provided inadequate

care with a deliberately indifferent mental state. Wilson v.

Seiter, 501 U.S. 294, 302 (1991).

Brooks has alleged that he was diagnosed with Type II

diabetes more than ten years prior to his incarceration. Brooks

further alleges that while he was incarcerated at the SCHC, he

was receiving adequate treatment, in the form of twice daily

blood testing as well as medication, daily exercise, and access

to a medically appropriate diet. Thus, at the SCHC, his diabetes

was reasonably controlled. Brooks alleges that with the

restriction on his ability to exercise and snack, his health has

been adversely affected and he has been exposed to a serious risk 

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 10 of 15
11

of harm inherent in not having his blood sugar levels well

controlled. 

 Brooks alleges that prison officials were aware of his

condition, or should have been, as he was receiving treatment at

the SCHC immediately prior to his transfer to the NHSP. Despite

this, brooks alleges he did not receive adequate medical care. 

Accordingly, I find that Brooks has stated sufficient facts to

allege a deprivation of adequate medical care at the prison and I

will direct this claim to proceed against the defendants.

C. Access to Attorneys

“In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defense.” 

U.S. Const. amend. VI. “[U]nreasonable interference with the

accused person’s ability to consult counsel is itself an

impairment of the right [to the assistance of counsel].” 

Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001). An accused

person deprived of counsel during the pretrial phase of criminal

proceedings is one of the most serious deprivations that can be

suffered by a pretrial detainee. See Wolfish v. Levi, 573 F.2d

118, 133 (2d Cir. 1978), rev’d on other grounds by Bell v.

Wolfish, 441 U.S. 520 (1979). Here, Brooks alleges that his

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 11 of 15
12

ability to consult with counsel has been drastically curtailed

without justification. Brooks claims that this curtailment

violates the Sixth Amendment. Brooks is charged with capital

murder. There is no doubt that pretrial access to his attorneys

is of the utmost importance in his circumstances. Accordingly, I

find that, for purposes of preliminary review, Brooks has stated

sufficient facts to state a claim upon which relief might be

granted for a denial of his right to counsel.

III. Supervisory Liability

“Supervisory liability under § 1983 cannot be predicated on

a respondeat theory, but only on the basis of the supervisor’s

own acts or omissions.” Aponte Matos v. Toledo Davila, 135 F.3d

182, 192 (1st Cir. 1998) (internal citations omitted). A

supervisor must be “either was a primary actor involved in, or a

prime mover behind, the underlying violation.” Camilo-Robles v.

Zapata, 175 F.3d 41, 43-44 (1st Cir. 1999). There must be “an

affirmative link, whether through direct participation or through

conduct that amounts to condonation or tacit authorization” to

the violation alleged. Id. at 44.

Brooks claims that his transfer to the SHU was directed by

the office of the Attorney General, who presumably acted in

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 12 of 15
13

concert with the Commissioner of Corrections and the NHSP Warden,

to insure that Brooks was placed, as the Attorney General’s

office wished, in the SHU. The Warden and Commissioner are also

responsible for the general conditions of confinement at the

prison, and for insuring that there are policies in place to

protect the distinct rights of pretrial detainees housed at that

facility. While Brooks has not identified specific actions taken

by the named defendants that violate his rights, he has

sufficiently alleged that these individuals, in their supervisory

capacities, are responsible for his transfer to the NHSP’s SHU,

and to the conditions existing therein. Accordingly, I direct

that this complaint be served on Ayotte, Wrenn, and Gerry in

their supervisory capacities.

Conclusion

For the foregoing reasons, and without further comment on

the merits of the claims alleged, I find that Brooks has

sufficiently stated the minimum facts necessary to allow this

action to proceed against defendants Ayotte, Wrenn and Gerry. I

order the complaint (document no. 1 & 7) be served on Defendants. 

The Clerk’s office is directed to serve the New Hampshire Office

of the Attorney General (“AG”), as provided in the Agreement On

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 13 of 15
6The defendants prematurely filed an answer to this

complaint on January 10, 2008 (document no. 27). If no further

answer or other responsive pleading is received within the time

frame established in this Order, the answer filed will be

accepted as the defendants’ answer in this matter.

14

Acceptance Of Service, copies of this order and the complaint

(document no. 1 & 7). See LR 4.3(d)(2)(C). Within thirty days

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

an Acceptance of Service notice specifying those defendants who

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

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

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

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

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

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

aforementioned materials, provide a separate list of the last

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

instructed to complete service on these individuals by sending to

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

these same documents. 

Defendants are instructed to answer or otherwise plead

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

12(a)(1)(A).6 

Case 1:07-cv-00411-JD Document 34 Filed 01/16/08 Page 14 of 15
15

Plaintiff is instructed that all future pleadings, written

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

the Defendants by delivering or mailing the materials to them or

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

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 16, 2008

cc: Christopher H. M. Carter, Esq.

Dean Richlin, Esq.

Daniel M. Deschenes, Esq.

Thomas M. Hoopes, Esq.

Martin F. Murphy, Esq.

Laura E. B. Lombardi, Esq.

Nancy J. Smith, Esq.

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