UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Patrick E. Dullen

v. 05-cv-139-PB

Cheshire County, et al.

REPORT AND RECOMMENDATION

Proceeding pro se and in forma pauperis, plaintiff Patrick

E. Dullen brings this action pursuant to 42 U.S.C. § 1983,

alleging that defendants have abridged his rights under the

First, Eighth and Fourteenth Amendments to the United States

Constitution (document no. 1). Named as defendants are Cheshire

County, Cheshire County Department of Corrections (“CCDOC”) and

four CCDOC employees and/or contractors: Superintendent Richard

N. Van Wickler; Captain Robert Cook; Dr. Stern; and Nurse Carol

Anne Rochelau. 

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

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Dullen has alleged the following claims: (1) Eighth Amendment

claims premised upon denial of adequate medical care against

Stern and Rochelau; and (2) Eighth Amendment claims premised upon

denial of adequate dental care against Rochelau and Cook. I

recommend dismissal of all remaining claims.

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). 

Background

Construing the allegations in the light most favorable to

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1Dullen claims to have received treatment from the following

doctors and medical facilities: Drs. San Vicente, Van Wanslaben

and Jobst of Dartmouth-Hitchcock Medical Center; Grafton County

Department of Corrections Medical Department; Cottage Hospital

Pain Clinic; Onondaga County Justice Center Medical Unit; Upstate

Medical Center; and Franklin County House of Corrections Medical

Department.

3

Dullen, the material facts are as follows. Dullen is currently 

incarcerated as a federal prisoner at the Franklin County House

of Corrections in Greenfield, Massachusetts. The claims in this

action arise from deprivations that occurred during his previous

incarceration at the CCDOC where he allegedly was denied adequate

medical and dental care and meaningful access to the courts.

Denial of Adequate Medical

and Dental Care

Upon his arrival at the CCDOC during the last week of April

or first week of May in 2004, Dullen was interviewed by Nurse

Rochelau and informed her of his physical injury and medical

needs. Although the record is silent as to the exact nature of

his medical condition and treatment provided, Dullen appears to

suffer from an elbow injury and related pain. He has provided a

list of treating doctors1 who prescribed him the following

medications beginning in November 2002: (1) Ultram (150 mgs.,

three times a day); Elavil (100 mgs. at bedtime); Neurontin 800

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mgs., three times a day); and Motrin (800 mgs. three times a

day). According to Dullen, defendants were in possession of the

medical records from his treating doctors and were aware of his

injury and need for prescribed medications. 

Following his interview with Rochelau, Dullen was evaluated

by Dr. Stern, a CCDOC physician. Stern prescribed Ultraset,

Neurontin and Elavil, allegedly in doses 1/4 to 1/3 less than

that prescribed by Dullen’s prior treating doctors. Despite

Dullen’s constant complaints of pain, Stern and Rochelau

repeatedly denied him adequate pain medication. Stern

recommended that Dullen undergo an MRI and, upon reviewing the

test results, informed him that he suffered from a critical

medical condition that required immediate spine or neck surgery. 

Stern allegedly advised Dullen that without the surgery he would

risk paralysis. Rochelau concurred with Stern’s recommendation. 

On July 23, 2004, Dullen was examined by Dr. Jenkins, a

neurosurgeon affiliated with the Dartmouth-Hitchcock Medical

Center, who rendered a medical diagnosis differing from that

rendered by Stern. According to Jenkins, Dullen suffered from an

elbow injury that only required elbow surgery. In bringing this

action, Dullen alleges that defendants’ misdiagnosis of his

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medical condition, recommendation for unnecessary surgery and

denial of adequate pain medication rise to the level of Eighth

Amendment violations.

In addition to his medical care claims, Dullen alleges that

defendants have denied him adequate dental care by failing to

provide him with replacement dentures. Upon his arrival at the

CCDOC, Dullen informed Rochelau that his dentures were loose and

needed to be relined. He was subsequently evaluated by a dentist

who concluded that his existing dentures were beyond repair and

needed to be replaced. Despite the dentist’s recommendation,

Dullen was denied replacement dentures and any subsequent dental

visits. Defendants’ acts and omissions allegedly rise to the

level of Eighth Amendment violations.

Denial of Access to the Courts

Lastly Dullen claims that defendants denied him meaningful

access to the courts by providing him with inadequate and

obsolete library resources. He claims that his right of access

to the courts was further violated when defendants monitored a

telephone call to his attorney and interfered with his privileged

attorney-client communications. Defendants’ actions allegedly

rise to the level of First and Fourteenth Amendment violations.

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2While the provisions of the Eighth Amendment do not extend

to pretrial detainees, the Due Process Clause of the Fourteenth

Amendment provides them with rights which are at least as great

as the Eighth Amendment protections available to a convicted

prisoner. See Burrell v. Hampshire County, 307 F.3d 1, 7 (1st

Cir. 2002).

3To the extent Dullen, a federal prisoner, alleges a due

process violation stemming from his prison transfer, I conclude

that he has failed to state a cognizable claim. “[N]either the

Constitution nor the applicable federal statute grants [a

6

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

(1st Cir. 1997). The premise of Dullen’s Section 1983 action is

that prison officials abridged his Eighth Amendment2 rights by

denying him adequate medical and dental care and abridged his

First and Fourteenth Amendment rights by denying him access to

the courts.3

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prisoner] a liberty interest in the location of his place of

confinement sufficient to invoke the protections of the Due

Process Clause.” Fermin-Rodriguez v. Westchester County Jail

Med. Pers., 191 F. Supp. 2d 358, 363 (S.D.N.Y. 2002)(citing 18

U.S.C.A. § 3621 (b), which states that “The Bureau [of Prisons}

may at any time . . . direct the transfer of a prisoner from one

penal or correctional facility to another.”)

7

A. Denial of Adequate Medical Care

Dullen alleges that Stern and Rochelau have abridged his

Eighth Amendment rights by withholding essential medical care. 

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. See also Farmer v. Brennan, 511 U.S. 825,

837 (1993). 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.” Estelle, 429 U.S. at 104-05. “A ‘serious medical

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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, 18

(1st Cir. 1995)(quoting Gaudreault v. Salem, 923 F.2d 203, 208

(1st Cir. 1990). 

Here, the complaint alleges sufficient facts to state an

Eighth Amendment claim for the denial of adequate medical care. 

First, Dullen has described a serious medical condition and

immediate need for prescribed medications in order to treat an

elbow injury and related pain. Second, he has demonstrated

deliberate indifference with respect to Stern and Rochelau by

alleging that once they had knowledge of his serious medical

needs and history, they nevertheless denied him adequate medical

care or failed to ensure that he received proper care. When

Dullen arrived at the CCDOC, Stern and Rochelau repeatedly denied

him sufficient pain medication despite his constant complaints of

pain. If true, the allegations demonstrate that defendants’ acts

and omissions prevented him from receiving prompt and essential

medical treatment for a serious condition. Accordingly, I find

that he has stated Eighth Amendment claims premised upon the

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denial of adequate medical care against Stern and Rochelau.

B. Denial of Adequate Dental Care

Dullen alleges that Rochelau and Cook have abridged his

Eighth Amendment rights by withholding essential dental care. 

The denial of dental care may give rise to a constitutional

violation when the denial results in a substantial risk of

serious harm to a prisoner. See Farrow v. West, 320 F.3d 1235,

1243-44 (11th Cir. 2003)(need for dental care combined with the

effects of not receiving it may give rise to an Eighth Amendment

claim); Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.

1998)(finding serious dental need where plaintiff alleged extreme

pain, deterioration of his teeth and an inability to eat

properly); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995)(delay

in dental care coupled with knowledge of patient’s pain can

support Eighth Amendment claim).

The standard of deliberate indifference is met only when the

prison official subjectively “knows of and disregards an

excessive risk to inmate health or safety.” Farmer, 511 U.S. at

837. As stated previously, 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

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

Here, the complaint alleges sufficient facts to state an

Eighth Amendment claim for the denial of adequate dental care. 

First, Dullen has described a serious condition, the need for

replacement dentures. Second, he has demonstrated deliberate

indifference by alleging that once Rochelau and Cook had

knowledge of his serious dental needs, they nevertheless failed

to provide him with new dentures and adequate dental care. Upon

his arrival at the CCDOC, Dullen informed Rochelau that he wore

dentures and needed them relined because they were loose. The

CCDOC located a dentist who was unable to provide the necessary

care but confirmed that Dullen’s dentures were unable to be

repaired and needed to be replaced. Correspondence of July 2004

reveals that Dullen requested an appointment to see a dentist and

informed Cook that a previous dentist recommended replacement

dentures and that his current dentures were unusable. Even

though Dullen was given approval for new dentures, Rochelau and

Cook failed to schedule a dental appointment so that he could

receive the necessary care. If true, the allegations demonstrate

that defendants’ acts and omissions prevented Dullen from

receiving adequate treatment for a serious dental need.

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4Dullen alleges that defendants violated his attorney-client

privilege by monitoring telephone calls to his attorney. I

construe his allegations to allege a claim for denial of access

to the courts. See Campbell v. Miller, 787 F.2d 217, 225-26 (7th

Cir. 1986)(interference in legal communications between prisoner

and counsel implicates Sixth Amendment right of access to the

courts). 

11

Accordingly, I find that Dullen has stated Eighth Amendment

claims premised upon the denial of adequate dental care against

Rochelau and Cook.

C. Denial of Access to the Courts

Construed liberally, the complaint alleges that defendants

have abridged Dullen’s First and Fourteenth Amendment right to

meaningful access to the courts by providing him with inadequate

and obsolete library resources and interfering with his attorneyclient communications.4

It is undisputed that inmates have a constitutionally

protected right of meaningful access to the courts. See Bounds

v. Smith, 430 U.S. 817, 828 (1977); Wolff v. McDonnell, 418 U.S.

539, 556 (1974); Boivin v. Black, 225 F.3d 36, 42 (1st Cir.

2000). This right only “‘requires prison authorities to assist

inmates in the preparation and filing of meaningful legal papers

by providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law.’” Carter v. Fair,

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786 F.2d 433, 435 (1st Cir. 1986)(quoting Bounds, 430 U.S. at

828)). 

While a prison inmate retains a right of access to the

courts, to establish a claim he must allege that he suffered

actual injury as a result of defendants’ actions. See Lewis v.

Casey, 518 U.S. 343, 351-52 (1996). An inmate cannot establish

relevant actual injury simply by alleging that “his prison’s law

library or legal assistance program is subpar in some theoretical

sense.” Id. at 351. He must demonstrate that the alleged

shortcomings in the law library or legal assistance program

“hindered his efforts to pursue a legal claim.” Id. (“He might

show, for example, that a complaint he prepared was dismissed for

failure to satisfy some technical requirement which, because of

deficiencies in the prison’s legal assistance facilities, he

could not have known. Or that he had suffered arguably

actionable harm that he wished to bring before the courts, but

was so stymied by inadequacies of the law library that he was

unable even to file a complaint.”). 

A prison regulation or practice may interfere with a

fundamental constitutional right of access to the courts if it 

bears a rational relation to legitimate penological interests. 

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See Overton v. Bazzetta, 123 S. Ct. 2162, 2167 (2003). Thus,

even if Dullen is able to establish that a challenged policy

actually impedes his right to access the courts, he is not

entitled to relief if the policy satisfies this requirement.

Dullen alleges that the prison law library resources are

inadequate and obsolete, however, he does not allege that he

suffered actual injury as a result of the inadequacies. There is

no indication that any deficiencies in the prison law library

resources resulted in an interruption or delay of his pending or

contemplated litigation or otherwise hindered his efforts to

pursue his legal claims. To the contrary, the record shows that

Dullen has filed this action and a prior civil rights action in

this Court. Because he has not demonstrated any injury that

resulted from the alleged deficiencies in the prison law library,

I conclude that he has failed to state sufficient facts to

support a claim premised upon denial of access to the courts. 

Accordingly, I recommend that this claim be dismissed in its

entirety.

II. Municipal Liability

Construed liberally, the complaint names Cheshire County and

the CCDOC, a municipal entity, as defendants in this action. 

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Municipalities and local government entities are “persons” within

the meaning of Section 1983. See Monell, 436 U.S. at 690. A

municipality or municipal entity cannot be held liable under

Section 1983 on a theory of respondeat superior or vicarious

liability; rather the municipality itself must proximately cause

the constitutional injury, through promulgation or tacit approval

of a policy or custom. See City of Canton v. Harris, 489 U.S.

378, 385 (1989). To state a viable Section 1983 claim, a

plaintiff must allege in substance that the challenged municipal

custom or policy was the “moving force” behind the constitutional

violations. See Board of the County Comm’rs v. Brown, 520 U.S.

397, 404 (1997); McCabe v. Life-Line Ambulance Serv., 77 F.3d

540, 544 (1st Cir. 1996) (citations omitted).

If Dullen intends to pursue claims against Cheshire County

and the CCDOC he must, at a minimum, allege that his

constitutional deprivations were the product of a municipal

custom or policy. Even liberally construing the complaint, I

cannot reasonably conclude that the wrongful conduct ascribed to

the defendants was the product of any unconstitutional municipal

custom or policy. Instead, the complaint plainly alleges that

the wrongful conduct to which Dullen was subjected resulted from

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the actions taken by individual defendants and not as the result

of a policy statement, ordinance, regulation or officially

adopted decision. See Monell, 436 U.S. at 690. Nothing in the

complaint demonstrates how Cheshire or the CCDOC were “moving

forces” behind the actions or omissions by the defendants. 

Accordingly, I conclude that the complaint fails to state a

viable claim premised upon municipal liability and, therefore,

recommend that Cheshire County and the CCDOC be dismissed from

this action.

Construed liberally, the complaint names each defendant in

his or her official capacity as an officer or employee of the

CCDOC. 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. 

See also Brandon v. Holt, 469 U.S. 464, 471 (1985)(suits against

parties in their official capacities treated as suits against the

municipality). Because I find no municipal liability as to

Cheshire County and the CCDOC, I extend that reasoning to Stern, 

Rochelau and Cook and conclude that the official capacity claims

against them fail.

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Conclusion

For the reasons stated above, I find that Dullen has alleged

the following claims: (1) Eighth Amendment claims premised upon

denial of adequate medical care against Stern and Rochelau; and

(2) Eighth Amendment claims premised upon denial of adequate

dental care against Rochelau and Cook. 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. 

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,

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792 F.2d 4, 6 (1st Cir. 1986).

________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 23, 2005

cc: Patrick E. Dullen, pro se

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