1In addition to O’Mara, Crosdale names the following

employees of the Hillsborough County Department of Corrections as

defendants to this action: Corrections Officer (“C.O.”) Antillis

(first name unknown (“FNU”)), Lt. FNU Riley, Field Training

Officer (“FTO”) FNU Potter, C.O. FNU Granville, Sgt. FNU

Pinciaro, and FTO FNU O’Neil.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Raymond Crosdale

v. Civil No. 08-cv-216-PB

James O’Mara, Superintendent,

Hillsborough County Department

of Corrections, et al.1

O R D E R

Before the Court is Raymond Crosdale’s complaint (document

no. 1), filed pursuant to 42 U.S.C. § 1983, alleging that he was

assaulted by corrections officers, in violation of his federal

constitutional rights, during his incarceration at the

Hillsborough County Department of Corrections (“HCDC”). Because

Crosdale is a prisoner proceeding both pro se and in forma

pauperis, the matter is before me for preliminary review to

determine whether the complaint states any claim upon which

relief might be granted. See United States District Court

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2

District of New Hampshire Local Rule (”LR”) 4.3(d)(2). As

explained herein, I find that Crosdale has stated the minimum

facts necessary to assert a claim for relief, and I direct that

this action proceed against defendants at this time.

Crosdale has also requested court-appointed counsel in this

matter. For the reasons stated herein, that motion is denied.

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review. LR

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

construes pro se pleadings liberally, however inartfully pleaded. 

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

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

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

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

courts may construe pro se pleadings so as to avoid

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3

inappropriately stringent rules and unnecessary dismissals of

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

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

Beginning on November 1, 2007, Raymond Crosdale was a

pretrial detainee incarcerated at the HCDC. Crosdale asserts

that while he was housed at the HCDC, he sustained multiple

physical beatings by the defendant corrections officers. 

Crosdale further alleges that these beatings were conducted at

the direction of HCDC Superintendent, James O’Mara. Crosdale

asserts that he sustained injuries during the beatings severe

enough to warrant hospital treatment. Crosdale further asserts

that he has suffered from mental health issues as a result of the

beatings, for which he is still being treated.

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2The claims, as identified herein, shall be considered to be

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

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

must file a motion to amend his complaint.

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 . . . .

4

Discussion2

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, Crosdale claims

that defendant HCDC employees are state actors, and that they 

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5

violated his Fourteenth Amendment rights. Crosdale’s action

arises, therefore, under § 1983.

II. Fourteenth Amendment

Crosdale asserts that he was a pretrial detainee at the

times the beatings he complains of occurred. Crosdale’s action,

therefore, arises under the Fourteenth Amendment. See, e.g.,

Lyons v. Powell, 838 F.2d 28, 29 (1st Cir. 1988) (per curiam)

(rejecting an Eighth Amendment challenge to pretrial detention). 

“‘[T]he State does not acquire the power to punish, with which

the Eighth Amendment is concerned, 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 Ingraham v. Wright, 430 U.S. 651, 671-72 n.40 (1977)). 

Detainees have a constitutional right under the due process

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

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

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

challenged conditions or restrictions which can be rationally

related to some legitimate administrative goal or security

concern generally will not be deemed unconstitutional

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

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Clause prohibits the infliction of punishment on a person prior

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

pretrial detainee is ultimately whether the conditions of

confinement were reasonably related to a legitimate state

interest or were intended instead as punishment. See Surprenant,

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

315, 317 (1st Cir. 1995).

III. Excessive Force

The Fourteenth Amendment protects a pretrial detainee from

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

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

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

whether a plaintiff has stated a claim for unconstitutionally

excessive force, the court should look to the following four

factors: (1) “the need for application of force,” (2) “the

relationship between the need and the amount of force that was

used,” (3) “the extent of injury inflicted,” and (4) “whether the

force was applied in good faith to maintain or restore discipline

or maliciously and sadistically for the very purpose of

inflicting harm.” Garcia, 115 F. Supp. 2d at 81. Crosdale

alleges that he was subjected to multiple beatings by corrections

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officers, requiring him to be hospitalized. Crosdale has not at

this time described the specifics circumstances surrounding each

incident. However, Crosdale’s complaint can be liberally

construed to allege generally that Crosdale suffered beatings and

injuries that were neither provoked nor warranted, that caused

significant injury, and that were not designed to maintain or

restore discipline but were punitive, sadistic, and malicious. 

Accordingly, I find that Crosdale has stated the minimum facts

necessary to state a claim for excessive force in violation of

the Fourteenth Amendment against the defendant corrections

officers. To the extent that Crosdale has alleged that O’Mara

caused the beatings by directing them, I find that he, too, is an

appropriate defendant to this action.

IV. Court-Appointed Counsel

In his complaint, Crosdale has requested court-appointed

counsel. There is no absolute constitutional right to free legal

representation in a civil case. Bemis v. Kelley, 857 F.2d 14, 15

(1st Cir. 1988). Rather, appointment of counsel in a civil case

is left to the discretion of the court. See 28 U.S.C. § 1915(d);

42 U.S.C. § 3613(b). An indigent litigant must demonstrate that

exceptional circumstances exist to justify appointment of

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counsel, such that without counsel the litigant most likely would

be unable to obtain due process of the law. DesRosiers v. Moran,

949 F.2d 15, 23 (1st Cir. 1991); Cookish v. Cunningham, 787 F.2d

1, 2 (1st Cir. 1986) (per curiam). In the case at hand, Crosdale

has, at this time, failed to establish the existence of such

circumstances. Crosdale’s motion for a court-appointed attorney

is therefore denied without prejudice to refiling in the future

should circumstances warrant.

Conclusion

For the foregoing reasons, I find that Crosdale has

sufficiently alleged the minimum facts necessary to state an

excessive force claim against the defendants. Without further

comment on the merits of the complaint, I order that it be served

on the defendants. My review of the file indicates that Crosdale

has completed a single summons form for defendant O’Mara. 

Crosdale must submit a separate summons form for each defendant

he seeks to name in this action. The Clerk’s office is directed

to forward the appropriate forms to Crosdale, who must return the

completed forms within thirty days of the date of this Order. 

Upon receipt of the completed summons forms, the Clerk’s office

is directed to issue the summonses against defendants and forward

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to the office of the United States Marshal for the District of

New Hampshire (the “U.S. Marshal’s office”), for each defendant,

the summonses, copies of the complaint (document no. 1), and

copies of this Order. Upon receipt of the necessary

documentation, the U.S. Marshal’s office shall effect service

upon defendants. See Fed. R. Civ. P. 4(c)(2). 

Defendants are instructed to answer or otherwise plead

within twenty days of service. See Fed. R. Civ. P. 12(a)(1)(A). 

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 attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 20, 2008

cc: Raymond Crosdale, pro se

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