1Starr names the following defendants, all employees of the

New Hampshire Department of Corrections (“DOC”) to this action:

Cpl. Timothy Coulombe, John Vinson, the attorney for the DOC

Commissioner, Northern New Hampshire Correctional Facility

(“NCF”) Warden Bruce Cattell, counselor C. Greenwood, Unit

Manager Robert Thyng, Unit Manager Clough, Ed Redmond, Unit

Manager Walsh, Corrections Officer Pidgeon. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Darren Starr

v. Civil No. 06-cv-487-PB

Cpl. Timothy Coulombe, et al.1

O R D E R

Darren Starr, an inmate at the Northern New Hampshire

Correctional Facility (“NCF”) has filed this action, pursuant to

42 U.S.C. § 1983, alleging that his First and Fourteenth

Amendment rights have been violated by defendants’ actions in

causing a December 2003 seizure of Starr’s incoming mail, and by

events that occurred subsequent to that seizure. As fully

explained herein, I find that Starr’s complaint states claims

upon which relief may be granted, and I direct service of the

complaint upon the defendants named therein.

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 1 of 34
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 must conduct a preliminary review to determine

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 in favor of the pro se

party. See Cooper v. Chao, 71 Fed.Appx. 76, 77 (1st Cir. 2003);

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

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “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.” 

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

denied, Ahmed v. Greenwood, 522 U.S. 1148 (1998).

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 2 of 34
3

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,” or “unsupportable conclusions”

must be accepted as true). This review ensures that pro se

pleadings are given fair and meaningful consideration.

Background

In December of 2003, Trina Catalino, a non-inmate, mailed a

letter to Darren Starr, an inmate at NCF. Accompanying the

letter were loose pages that Catalino had printed from the

internet. The printed pages contained copies of certain New

Hampshire statutes. Starr states that the pages were sent at his

request, and were intended for use in preparing litigation. 

Starr asserts that the statutes sent were obviously related to

the preparation of litigation because they dealt specifically

with “Correction and Punishment,” see N.H. Rev. Stat. Ann.

(“RSA”) § 622, et seq., the “Department of Corrections,” see RSA

§ 21-H, and rules of the State Nursing Board adopted pursuant to

the state’s Administrative Procedure Act, RSA § 541-A. Starr was

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 3 of 34
4

known by NCF officials to be a litigious inmate, and it is

reasonable to assume that, if Starr received in the mail copies

of laws about the authority and responsibilities of the DOC and

its employees, that NCF staff members who knew of that mailing

would have identified the printed statutes as likely intended for

use in litigation.

The pages in question were unbound, and all of them fit

inside a single envelope. Defendant Coulombe, an NCF mailroom

employee, seized the envelope from Catalino and notified Starr in

writing that it would be sent to the NCF’s Literary Review

Committee (“LRC”). The LRC is a group that, according to DOC

policy, is made up of three prison officials, a member of the

security staff, a member of the mental health staff, and a member

of the educational staff. The LRC is charged with evaluating

mail sent to inmates and identified by the mailroom staff as

possibly inappropriate, to determine whether all or part of the

mailing should be forwarded to the intended inmate recipient,

destroyed, returned to the sender, or otherwise handled. 

On February 18, 2004, the LRC met to review the mail that

was withheld from Starr on December 23, 2003. The members of the

LRC on that occasion were defendants Clough, Redmond, Pidgeon,

Walsh, and Coulombe. Starr alleges that the LRC that was

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 4 of 34
5

convened to review his mail had more than three members, did not

include any member of the educational staff, and included at

least three members of the security staff, all in violation of

written prison policy governing the makeup and function of the

LRC.

On February 21, 2004, Starr received a notice, dated

February 19, 2004, that because he had received a “large quantity

of internet printouts,” in violation of the “Publisher’s Only”

rule, his mail had been rejected and would not be forwarded to

him. That notice also advised Starr that he had ten days to

appeal the decision of the LRC, and that after ten days, if no

appeal were taken, the mail would be returned to the sender at

Starr’s expense. The document also had a box checked next to the

statement: “Any material that contains contraband as defined by

this policy or other regulations,” indicating that, as rejected

mail, Starr’s letter would now be considered contraband by NCF

officials. 

The LRC decision was also accompanied by another document

entitled “5 Day Notice,” which, contrary to the LRC denial

notice, advised Starr that the “excess/unauthorized

mail/property” in question had to be removed from the NCF within

five days of the date of the notice, or the property would be

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 5 of 34
2I reviewed the version of PPD 9.2 effective at the time of

the events of which Starr complains. I understand that the PPD

has since been supersede by PPD 9.02 (eff. Sept. 1, 2005). I

note that the superseding version of the PPD does not contain any

reference to a 5 Day Notice being an appropriate response to

rejected incoming mail.

6

considered to be contraband. No specific disposition of property

deemed to be contraband is stated in the 5 Day Notice. The 5 Day

Notice refers to DOC Policy and Procedure Directive (“PPD”) 9.2,

which governs the “Issuance and Control of Resident Property.” 

PPD 9.2 does not specifically authorize the 5-Day notice to be

sent for rejected incoming mail, nor does PPD 9.2 specify how

incoming mail that is rejected or determined to be contraband

should be managed.2

Starr states that due to a delay in obtaining access to the

prison’s law library, he was unable to respond to the notice

until February 26, 2004. On that date, Starr put an appeal of

the LRC decision, directed to the NCF Warden, into the prison

mail box located on his housing unit. Starr put the appeal in

the box prior to the time when daily mail pick-ups are supposed

to occur. The mail was not removed from the box by any prison

official until March 1, 2004. The Warden did not receive Starr’s

appeal until March 2, 2004. The Warden responded to Starr that

because he had failed to pursue an appeal within five days of the

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 6 of 34
3The Warden erroneously stated in his denial of the appeal

that Starr “apparently took no action” on the LRC decision until

March 2, 2004.

7

issuance of the 5 Day Notice, the internet printouts and the

personal letter that the printouts were sent with had been

destroyed.3 The appeal was, therefore, denied, as Cattell was

not able to examine and evaluate the materials in question or the

validity of the LRC’s decision.

Starr filed a first-level grievance regarding the

destruction of the letter and printouts. The grievance was, as

Starr’s appeal had been, thorough and detailed as to what items

were sent and rejected, and the basis for Starr’s objection to

the denial of his mailed material. Defendant Thyng denied the

grievance on the grounds that Starr did not appeal the decision

of the LRC in time. 

Starr filed a second-level grievance with Warden Cattell. 

Again, the grievance was thorough and detailed with regard to the

facts alleged and legal theories and cases Starr asserted in

support of his position. Cattell denied Starr’s grievance,

stating that “by the time [Starr] got around to sending [his]

appeal the items had been destroyed.” Cattell stated that

because Starr had failed to make arrangements to have the

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 7 of 34
8

documents sent out of the prison by February 24, 2004, the items

were destroyed. 

Starr filed a third-level grievance, as thorough as its

predecessors in explaining exactly what steps he had taken to

protest the destruction of his mail, and how his conduct had

comported with prison policy to the extent possible, with the

office of the DOC Commissioner. John Vinson, the Commissioner’s

attorney, responded to that grievance as follows:

Let me see if I understand this. You got a 5-day 

notice. You ignored it. You did not ask that it be 

held in abeyance until you appealed. You then waited 

to appeal until at least the 7th day. Then you claim 

some violation of your rights. The warden’s response 

is sustained.

Starr asserts that the prison officials considering his

appeal and grievance filings disregarded the fact that Starr

should never have been given a 5 Day Notice, that he was provided

with an appropriate form that allowed for a ten day window for

Starr to respond to the LRC decision, that nowhere was Starr

advised in either notice, both of which are attached to the

complaint, that a failure to respond within five days would cause

an automatic destruction of the mailing in question. Further,

Starr states that to the extent that Starr’s filings may have

been untimely, if examined for compliance with the five-day rule,

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 8 of 34
4Although generally applied in the context of determining

the timeliness of court filings by inmates rather than the

sending of internal administrative grievances, the “prison

mailbox rule” states that an inmate’s pleading is to be

considered filed at the time it is properly placed into the

custody of prison officials, because after that time, the inmate

has no control over the handling of the document and is not able

to guarantee, through his own diligence, that the document will

be advanced to the proper recipient in a timely fashion. See

Houston v. Lack, 487 U.S. 266, 271-72 (1988); Casanova v. Dubois,

304 F.3d 75, 78-79 (1st Cir. 2002). 

542 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 . . . .

9

he in fact did timely appeal and the delays were caused by

factors within the exclusive control of prison officials, not by

any intentional or unintentional delay on the part of Starr. 

This fact was also disregarded by the reviewing officials.4

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. § 1983;5 City of Okla. City v.

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 9 of 34
6All of Starr’s claims arise under § 1983. The claims

identified in this Order will be considered for all purposes to

be the claims raised in this action. If Starr disagrees with

this identification of the claims, he must do so by properly

moving to amend his complaint.

10

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.), cert. denied, 522 U.S. 819

(1997). Here, Starr has raised several claims that the DOC

employee defendants, all state actors, have violated his federal

constitutional rights.6 As such, his claims arise under § 1983.

II. First Amendment

Incarceration brings about necessary limits on certain

aspects of an inmate’s constitutional rights. Turner v. Safley,

482 U.S. 78, 84 (1987). The First Amendment rights of prisoners

may be abridged to the extent that the exercise of those rights

is “inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system.” 

Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 129

(1977) (internal citations omitted). However, prison inmates

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 10 of 34
11

maintain a First Amendment right, albeit not an unlimited right,

to send and receive mail. See id.; see also Thornburgh v.

Abbott, 490 U.S. 401, 407 (1989). 

The First Amendment “embraces the right to distribute

literature, and necessarily protects the right to receive it.” 

Martin v. City of Struthers, 319 U.S. 141, 143 (1943). The First

Amendment “protects material disseminated over the internet as

well as by the means of communication devices used prior to the

high-tech era.” Clement v. Cal. Dep’t of Corrs., 364 F.3d 1148,

1152 (9th Cir. 2004) (citing Reno v. ACLU, 521 U.S. 844, 868

(1997)). In the prison context, a number of courts have found

that applying “publisher’s only” rules to restrict all printed

material sent into the prison with a personal letter, as opposed

to directly from the publisher, violates inmates’ First Amendment

rights. See e.g., Lindell v. O’Donnell, 211 Fed.Appx. 472, 474

(7th Cir. 2006), cert. denied, 127 S.Ct. 2104 (2007) (recognizing

that an all-out ban on receiving printed internet materials from

friends and family members would be unconstitutional); Lindell v.

Frank, 377 F.3d 655, 660 (7th Cir. 2004), cert. denied, 543 U.S.

1169 (2005) (concluding that application of “publisher only” rule

to all newspaper clippings and copies was a “close issue because

of the deference prison administrators enjoy,” but was

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 11 of 34
12

unconstitutional in that prisoners lacked access to the

restricted materials and less exaggerated responses were

available); Allen v. Coughlin, 64 F.3d 77, 80-81 (2d Cir. 1995)

(recognizing that a constitutional violation may exist where

prison officials remove “entirely innocuous” newspaper clippings

from prisoners’ mail pursuant to a publisher-only rule). 

 In Turner, the Supreme Court set out a four-factor test for

courts to use in determining whether a particular prison policy

serves legitimate penological objectives: (1) whether the

regulation is rationally related to a legitimate and neutral

government objective; (2) whether the inmate has other avenues

available to exercise the right in question; (3) the impact that

accommodating the asserted right will have on prison guards and

other prisoners, as well as on the allocation of prison

resources; and (4) whether there is any ready alternative to the

regulation that will fully accommodate the prisoners’ rights at

de minimus cost to valid penological interests, indicating that

the regulation is an exaggerated response by prison officials. 

482 U.S. at 87, 89-90. Applying this test, I will examine the

regulations at issue here to determine whether or not Starr can

state an actionable deprivation of his First Amendment rights.

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 12 of 34
7PPD 5.26 and the “Rejected Material” form attached to PPD

5.26 are reproduced and addended to this Order, for reference, as

Attachment 1.

8None of the notices to Starr regarding the mailing advised

him of how many pages the envelope contained, or what number of

pages would constitute a “large quantity.” PPD 5.26 does not

identify any number of loose pages in its definition of materials

that need to be received directly from a publisher. Starr does

state that the information all fit into a single envelope, along

with a personal letter.

13

A. The Mail Regulation

The handling of prisoner mail is governed by PPD 5.26 which

provides procedures for the review of all incoming mail to

inmates.7 Purportedly following that policy, defendant Coulombe

seized Starr’s incoming mail because it contained several sheets

of loose paper with New Hampshire statutes on them that had been

printed from the internet. The material was forwarded to the LRC

and reviewed by defendants Coulombe, Greenwood, Clough, Redmond,

and Walsh. Upon review, the LRC did not make any determination

that the content of the mailing was contraband, but determined

that because it was a “large quantity”8 of papers printed from

the internet, the mailing violated the “Publisher’s Only” rule.

The “Publisher’s Only” rule, located at PPD 5.26(IV)(D)(1),

requires that “[a]ll publications, tapes, records, discs or other

material may be introduced into the mail by a bona fide publisher

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 13 of 34
14

or bona fide bookstore and prepaid by direct subscription only.” 

The rule creates an exception for “[o]ne (1) subject article from

a publication” included in a piece of mail, provided that the

article is on paper no larger than 8 1⁄2" x 11" and is not altered. 

PPD 5.26(IV)(D)(2). 

A separate section of the regulation governing the receipt

of mail by a prisoner defines materials that must be sent

directly by a publisher as “[b]ooks, magazines, periodicals,

newspapers and recordings [tapes, discs or records].” Nothing in

PPD 5.26 specifically addresses the mailing of loose pages

downloaded from the internet sent in an envelope, or addresses

material printed from the internet at all. The only reference to

“large quantities” of paper sent to an inmate in PPD 5.26

indicates that “[w]hen the cost is borne by the inmate, there is

no limit on the volume of letters an inmate may send or receive,

or on the length, language, content or source of mail or

publications, except when there is a reasonable belief that the

limitation is necessary to protect public safety or institutional

order and security.” PPD 5.26(IV)(E)(1). There is no indication

in the facts alleged by Starr that there was any danger to public

safety, institutional order, or institutional security presented 

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 14 of 34
15

by several loose sheets of paper that were printed with New

Hampshire laws.

Several other provisions of PPD 5.26 are relevant to Starr’s

complaint. PPD 5.26(IV)(C)(1) mandates that the LRC be made up

of three members, including representatives of the DOC’s

security, mental health, and educational staff. PPD 5.26 governs

the treatment of mail that the LRC determines to be unacceptable

for prisoner receipt. PPD 5.26(IV)(N)(1) permits an inmate ten

days, from the date of decision, to appeal to the Warden an LRC

rejection of a piece of incoming mail. That provision also gives

the inmate an additional ten days, should the Warden deny the

inmate’s appeal, to send the rejected material out of the

institution. Only after that ten day grace period can the mail

be either discarded, destroyed, or returned to the sender of the

mail at the inmate’s expense. 

PPD 5.26(IV)(C)(8) also directs the LRC to advise inmates

that their incoming mail has been rejected by using a “Rejected

Material” form that is attached to PPD 5.26. That form advises

the inmate that he or she has ten days from the date on the form

to appeal the rejection of the mail to the Warden, and that such

an appeal should be taken by sending an inmate request slip. The

form further warns inmates that if no timely appeal is filed, the

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 15 of 34
16

material will be held in the mail room for an additional ten days

and then the material will be returned to the sender at the

inmate’s expense. 

PPD(IV)(B)(4) prohibits the rejection of mail because its

content is “religious, philosophical, political, social, sexual,

unpopular or repugnant.” Essentially, prison officials may not

reject mail based on its content unless that content poses a

threat to the safety and security of the institution, its

employees, or any of the inmates.

Finally, PPD (IV)(B)(5) and PPD (IV)(C)(5) direct prison

officials to destroy the entire contents of an incoming package

or envelope if any portion of the package or envelope is

objectionable or offensive, including publications, personal mail

or printed material. This regulation is reasonable, according to

its own terms, “[b]ecause tearing out rejected or offensive

portions of personal mail, publications or printed materials

creates animosity and ill will.” Plainly stated, the prison has

deemed it better to destroy the entire mailing rather than just

the portion of the mailing that the LRC has decided to reject.

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 16 of 34
17

B. Burden of First Amendment Rights and Legitimate 

Penological Objectives

Starr’s right to receive mail and publications has

unquestionably been burdened by the defendants’ use of PPD 5.26

to seize, prohibit, and destroy a personal letter and pages of

statutory law that had been mailed to him at NCF. Because the

application of the regulation impinged Starr’s First Amendment

right to receive mail, the regulation must be reasonably related

to a legitimate penological objective. There is no doubt that

monitoring, and some regulation of, information that flows into

the prison is a legitimate penological objective, to the extent

that such monitoring and regulation serves to protect

institutional security, or to prevent the introduction of

contraband, or illegal, disruptive, or dangerous information 

into the prison. Thornburgh, 490 U.S. at 415 (citing Pell v.

Procunier, 417 U.S. 817, 823 (1974)). 

This is not to say, however, that the standard is without

power to control a prison regulation’s overbreadth. The

reasonableness standard set forth in Turner, to be utilized by

the Court in evaluating the relationship of the regulation to a

legitimate penological objective, provides:

if . . . satisfied by nothing more than a ‘logical

connection’ between the regulation and any legitimate 

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 17 of 34
18

penological concern perceived by a cautious warden, it 

is virtually meaningless. Application of the standard 

would seem to permit disregard for inmates’ 

constitutional rights whenever the imagination fo the 

warden produces a plausible security concern and a 

deferential trial court is able to discern a logical 

connection between that concern and the challenged 

regulation.

Turner, 482 U.S. at 100-01 (Stevens, J.) (concurring in part and

dissenting in part) (citation omitted) (emphasis in original). 

Accordingly, Turner must be read to require some objectively

reasonable connection be able to be drawn between a prison rule

and the legitimate concern to which the rule is addressed. A

connection, examined under a less stringent standard requiring

only a logical link between the rule and its motivation, risks

creating carte blanche to any prison administration that can draw

a line, however tenuous, between a rule limiting inmates’ rights

and some broad or catch-all security concern, as long as the line

drawn is not illogical.

C. Reasonableness Under the Four Turner Factors

Starr’s complaint spells out a restriction of his First

Amendment rights, occasioned by the application of a regulation

that appears to be related to a legitimate penological concern. 

Whether or not that restriction is an unreasonable burden on

Starr’s First Amendment rights is determined by the four-factor

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 18 of 34
19

analysis set out in Turner. As described below, after evaluating

these factors, I find that Starr has sufficiently alleged that

his First Amendment rights were unreasonably restricted by the

application of PPD 5.26 to allow this claim to proceed against

the defendants here.

1. Rational Relationship and Neutral Objective

A prison regulation impinging on Starr’s First Amendment

right to receive mail must bear a rational relationship to a

neutral penological objective. Thornburgh, 490 U.S. at 415;

Turner, 482 U.S. at 90. As discussed above, a regulation that

allows the prison to censor mail and to determine, based on

content, whether or not a particular piece of mail presents a

risk to institutional security, has a rational relationship to a

legitimate penological interest. According to Starr’s complaint,

however, PPD 5.26 was applied to him in order to suppress his

criticism of the prison, as expressed by his litigation against

the prison. Starr points to the fact that New Hampshire statutes

printed from the internet were censored, seized, and destroyed by

prison officials, while other materials, including health-related

and spiritual or religious information, mailed in substantially

the same format of loose pages downloaded from the internet, were

permitted. I find, therefore, that Starr has alleged that the

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 19 of 34
20

regulation in question was rendered illegitimate by the improper

purpose of suppressing Starr’s permissible First Amendment right

to express his opinion of the prison and his prison conditions

and to seek redress for his grievances. See Thornburgh, 490 U.S.

at 415-16 (finding under Turner that only those regulations based

solely on the regulated activities’ potential for disrupting

prison security, are neutral) (emphasis added).

2. Alternative Means of Exercising Right

To permissibly curtail Starr’s First Amendment right, a

regulation must not be so broad as to prevent Starr from

exercising the right in question by any other means. Thornburgh,

490 U.S. at 418; Turner, 482 U.S. at 90. Ordinarily, inmates can

retrieve New Hampshire statutory law from the prison library. In

this case, however, Starr alleges that a lockout preventing Starr

from accessing the statutes in question at the prison’s library

computer prevented him from obtaining the information he needed,

and that waiting to obtain the information in another way would

have interfered with his then-pending litigation. Accordingly, I

find that Starr has alleged that in this instance he did not have

an adequate alternative means of exercising his right to obtain

legal materials.

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 20 of 34
21

3. Impact of Accommodation of Starr’s Rights

The Court must consider the impact that accommodating

Starr’s asserted rights would have on guards and inmates at the

prison. Thornburgh, 490 U.S. at 418; Turner, 482 U.S. at 90. 

Assuming, as I must, that the facts alleged by Starr are true, it

does not appear that there would have been any adverse impact at

all to the prison, prison employees, or any other inmate, in

allowing Starr to receive his personal letter and the statutes

enclosed with it. There is no apparent safety or security risk

based on the physical nature of loose sheets of paper containing

New Hampshire statutory law. Further, it would not have cost any

time or money to forward Starr’s incoming mail to him promptly 

upon ascertaining its content, which could have been accomplished

by a fairly cursory review of the documents. 

4. Ready Alternative/Exaggerated Response

“[T]he existence of obvious, easy alternatives may be

evidence that the regulation is not reasonable, but is an

‘exaggerated response’ to prison concerns.” Turner, 482 U.S. at

90. The regulation that was used to justify the seizure and

destruction of Starr’s mail in this case is not actually

contained within the text of the PPD governing the treatment of

incoming mail. It appears that, in response to the likely

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 21 of 34
22

relatively new phenomenon of material being downloaded from the

internet and then forwarded to inmates in letters, the prison

administration has attempted to craft a response by determining

that undefined “large quantities” of paper would be rejected as

violating the “Publisher’s Only” rule. Without a review of the

content of the material, however, rejecting papers that fit

within an envelope as “large quantities” of paper, when there is

no volume restriction on mail, appears to be an exaggerated

response to the issue of internet materials being sent into the

prison. While such a regulation might be drafted to prevent

inmates from skirting a “Publisher’s Only” rule and secreting in

contraband information within hundreds of pages of paper, it is a

stretch to apply such a rationale to paper that fits inside an

envelope. Such a document cannot create more of a security risk

than a word-processed personal letter that fits inside an

envelope of the same length, and which PPD 5.26 explicitly

permits. Accordingly, I find that, at least as applied in this

matter, the regulation, as alleged, is an exaggerated response on

the part of prison officials to a potential penological concern. 

The regulation, as applied, therefore, unreasonably restricts

Starr’s First Amendment rights.

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 22 of 34
9It appears that plaintiff is further asserting the

deprivation of a liberty interest created by the NHSP regulations

governing mail. State-created regulations may create a protected

liberty interest that affords a prisoner due process when facing

a deprivation of that interest. Dominique v. Weld, 73 F.3d 1156,

1159 (1st Cir. 1996) (citing Sandin v. Conner, 515 U.S. 472, 484

(1995)). Because a prisoner’s right to receive mail is protected

by the federal constitution, I do not find it necessary at this

stage of litigation to assess whether those regulations have

created any due process rights independent of the process due to

Starr to enable him to protect his substantive constitutional

rights. 

23

III. Due Process Claims

Plaintiff’s second claim asserts the deprivation of a

liberty interest created by the First Amendment to the United

States Constitution. Thornburgh, 490 U.S. at 418.9 The

Fourteenth Amendment provides that no state shall “deprive any

person of life, liberty, or property without due process of law.” 

U.S. Const. amend. XIV. Starr is entitled to due process

procedures that ensure that his right to receive mail is

protected from arbitrary government action. Wolff v. McDonnell,

418 U.S. 539, 557 (1974). Starr is entitled to “minimum

procedures appropriate under the circumstances and required by

the Due Process Clause” that insure that his First Amendment

rights are protected. Id. Starr describes a hearings process in

which the LRC failed to include a member of the DOC educational

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 23 of 34
24

staff, Starr was denied notice by way of specific rule or

regulation that the incoming mail was problematic, and was denied

adequate clear notice that his mail would be destroyed. Starr

further alleges that the process afforded him effectively denied

him the opportunity to appeal the LRC decision prior to the

destruction of his mail. Starr therefore has sufficiently

alleged a denial of due process to state a claim upon which

relief may be granted regarding the formation of the LRC, the

procedures employed by the LRC, and the appeal taken after the

LRC ruling. Accordingly, I direct that the due process claims be

served on the defendants.

IV. Retaliation

Starr next alleges that the seizure and destruction of his

mail, and the denial of due process that followed, constituted

unconstitutional retaliation for the exercise of his First

Amendment rights. Conduct on the part of prison officials that

is “not otherwise constitutionally deficient is actionable under

§ 1983 if done in retaliation for the exercise of

constitutionally protected first amendment freedoms.” Oropallo

v. Parrish, No. 93-1953, 1994 WL 168519, at *3 (D.N.H. May 5,

1994), aff’d, 23 F.3d 394 (1st Cir. 1994) (citing Ferranti v.

Moran, 618 F.2d 888, 892 n.4 (1st Cir. 1980) (“[A]ctions

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 24 of 34
25

otherwise supportable lose their legitimacy if designed to punish

or deter an exercise of constitutional freedoms.”) (citation

omitted)); see Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993),

cert. denied, 512 U.S. 1209 (1994) (prison officials cannot

lawfully impose a disciplinary sanction against a prisoner in

retaliation for the prisoner’s exercise of his constitutional

right). “[G]overnment actions, which standing alone do not

violate the Constitution, may nonetheless be constitutional torts

if motivated in substantial part by a desire to punish an

individual for exercise of a constitutional right.” Mitchell v.

Horn, 318 F.3d 523, 530 (3d Cir. 2003). On the other hand, as

noted above, prison officials may make policy that is reasonably

related to legitimate penological interests, even at the expense

of certain constitutional rights. See Beard v. Banks, ___ U.S.

___, 126 S.Ct. 2572, 2579 (2006) (citing Turner, 482 U.S. at 89-

90). 

In order to state a claim for retaliation for exercising his

First Amendment rights, Starr must allege: (1) the conduct which

led to the alleged retaliation was protected by the First

Amendment, (2) some adverse action at the hands of the prison

officials, and (3) a causal link between the exercise of his

First Amendment rights and the adverse action take. See Price v.

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26

Wall, 464 F. Supp. 2d 90, 96 (D.R.I. 2006); see also LaFauci v.

N.H. Dep’t of Corr., No. Civ. 99-597-PB, 2005 WL 419691, at *7

(D.N.H. Feb. 23, 2005) (Unpublished Order). I consider each of

these elements of a retaliation claim in turn.

A. Petitioning the Government for Redress of 

Grievances/Maintaining Right of Access to the 

Courts

The right to petition the government for a redress of

grievances has been characterized as “among the most precious of

the liberties safeguarded by the Bill of Rights.” United Mine

Workers v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967). In

the prison context, this right means that inmates must be

“permit[ted] free and uninhibited access . . . to both

administrative and judicial forums for the purpose of seeking

redress of grievances against state officers.” Turner, 482 U.S.

at 84 (citing Johnson v. Avery, 393 U.S. 483 (1969)); Sostre v.

McGinnis, 442 F.2d 178, 200 (2d Cir. 1971) (en banc), cert.

denied, Sostre v. Oswald, 404 U.S. 1049 and Oswald v. Sostre, 405

U.S. 978 (1972). 

Starr has alleged that he exercised his First Amendment

right to petition the government for a redress of grievances by

engaging in litigation against the prison and its employees both

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 26 of 34
10Starr has filed a number of lawsuits against DOC employees

in this Court. See Starr v. Corr. Comm’r, No. 89-cv-MFL (filed

July 25, 1989); Lepine v. Corr. Comm’r, No. 97-cv-072-SM (filed

Feb. 18, 1997); Cookish v. Rouleau, No. 02-cv-028-SM (filed Jan.

18, 2002); Starr v. Rouleau, No. 02-cv-053-SM (filed Jan. 29,

2002); Starr v. N. N.H. Corr. Facility, Warden, No. 04-cv-002-SM

(filed Jan. 5, 2004); Starr v. Dube, No. 05-cv-264-SM (filed July

26, 2005) (raising issues occurring simultaneously with the

events at issue here); Starr v. Cox, No. 05-cv-368-JD (filed Oct.

27, 2005) (same).

27

prior to and during the time the acts challenged here occurred.10

Starr alleges that the fact that his litigation history was known

to the defendants, some of whom were previously named as

defendants to other suits he filed, and that he was receiving

mail that was obviously related to either pending or future

litigation, gives rise to the inference that the seizure and

premature destruction of his mail, as well as the denial of his

due process rights, were done in retaliation for his

constitutionally protected conduct of petitioning the government

for a redress of his grievances against the DOC. Because Starr’s

prior and future litigation is protected by the First Amendment

as an exercise of his right to petition the government to redress

grievances, Starr has alleged sufficient facts to satisfy the

first requirement for stating a retaliation claim.

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B. Adverse Action

To state an adverse action, plaintiff must allege that the

defendants subjected him to “conduct that would deter a similarly

situated individual of ordinary firmness from exercising his or

her Constitutional rights.” Dawes v. Walker, 239 F.3d 489, 492

(2d Cir. 2001), overruled in part on other grounds by Phelps v.

Kapnolas, 308 F.3d 180, 187 n.6 (2d Cir. 2002); see Thaddeus-X v.

Blatter, 175 F.3d 378, 398 (6th Cir. 1999). Even if a particular

inmate is not chilled in his expression, a claim for retaliation

may still arise if the retaliatory behavior alleged is

objectively sufficient and onerous to deter an ordinary person

from exercising his rights. Gay v. Shannon, No. Civ.A. 02-4693,

2005 WL 756731, *8 (E.D.Pa. 2005) (citing Allah v. Seiverling,

229 F.3d 220, 225 (3d Cir. 2000)). Starr alleges that the

defendants seized his mail containing both legal materials and a

personal letter, determined that the legal materials violated

prison regulations, and that they then destroyed the entire

correspondence before the expiration of the period for appeals

allowed by the mail regulations. The premature destruction of

the mail, Starr alleges, was also caused by the improper

application of a “five day notice” to a mail situation, the

failure of the prison to provide him with time in the library to

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29

prepare his appeal before the expiration of the improperly

abbreviated appeals period, and then the failure to deliver the

appeal to the Warden for five additional days. I find that an

inmate of ordinary firmness might well be chilled in his efforts

to litigate his grievances against the prison, both

administratively and in the courts, if his efforts to do so were

expected to be rewarded with the destruction of his personal mail

without being afforded the proper opportunity to challenge such

an action. Starr, therefore, has stated sufficient facts to

allege that adverse actions were taken against him that would

chill an ordinary inmate in his situation from exercising his

First Amendment right to petition the government for a redress of

grievances.

C. Retaliatory Action Caused by First Amendment Violation

Circumstantial evidence is often enough to support a claim

that an adverse action was taken with retaliatory intent, as

intentions are often difficult to prove through direct evidence. 

See Beauchamp v. Murphy, 37 F.3d 700, 711 (1st Cir. 1994), cert.

denied, 514 U.S. 1019 (1995); Ferranti, 618 F.2d at 892

(chronology of events provided support for inference of

retaliation); McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979)

(same); see also Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 29 of 34
11The nonlegal documents printed from the internet and

mailed in letters, in the same form as the mail at issue in the

instant complaint, which were not seized, are attached to Starr’s

complaint. These documents were on the subject of Tai Chi Chuan

practice (eleven pages mailed in and accepted by the NCF

mailroom) and a medical condition called folliculitis (2 pages

mailed in and accepted by the NCF mailroom).

30

1995), cert. denied, Palermo v. Woods, 516 U.S. 1084 (1996). 

Here, Starr alleges that mail he received containing materials

printed off the internet that were nonlegal in nature were

forwarded to him without question.11 When he was sent a letter

containing loose sheets of paper with New Hampshire statutes

printed on them, however, his mail was seized, and was subject to

an extra-regulation timetable for appeal, and therefore destroyed

before Starr had any opportunity to appeal the rejection of his

mail to the appropriate authorities. When he attempted to grieve

this allegedly inappropriate destruction of his personal letter

and legal materials, he was advised at each level of his appeal

that the destruction of his mail was the result of his own

inaction, and not the result of a misreading of the regulation. 

The responses to Starr’s thoroughly argued position containing

references to the regulations governing mail uniformly failed to

acknowledge Starr’s arguments and references to the prison’s own

regulations. Both Warden Cattell’s and Attorney Vinson’s

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 30 of 34
31

responses to Starr adopted a tone which clearly indicated that

Starr’s arguments citing to the law and to the prison’s

regulations were beyond reason or understanding. These events,

considered together, present sufficient circumstantial evidence

of an intent to retaliate against Starr for the exercise of his

First Amendment rights to meet the third requirement for a

retaliation claim. Accordingly, I find that Starr has stated a

retaliation claim upon which relief may be granted, and I direct

that this action be served on the defendants named in the

complaint.

V. Supervisory Liability Claims

Starr has named Thyng, Cattell and Vinson as defendants to

this action in their supervisory capacities. Starr bases his

allegation of supervisory liability on the fact that, through

Starr’s grievances and appeals, the supervisory defendants were

aware of the violation of Starr’s constitutional rights, and yet

they failed to remedy the situation. “Supervisory liability

under § 1983 cannot be predicated on a respondeat [superior]

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, to

be liable for the acts of those who serve underneath him, “either

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 31 of 34
32

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. 

Construing the allegations in the complaint as true, as I am

required to do at this preliminary stage of review, the facts

readily demonstrate that the supervisory defendants implicitly

approved and supported the deprivation of Starr’s First Amendment

rights by failing to respond to Starr’s complaint in any

meaningful way. By advancing policies that served to deprive

Starr of his rights, they were directly responsible for the

losses sustained by Starr. Starr has, therefore, sufficiently

alleged that Thyng, Cattell, and Vinson were responsible for the

first amendment violation and retaliation alleged, in their

individual as well as supervisory capacities, and I direct that

the claims in this case be served against those defendants in

their individual supervisory capacities.

Conclusion

As I find that plaintiff has stated claims upon which relief

may be granted, I order the complaint (document no. 1) be served

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33

on Defendants. The Clerk’s office is directed to serve the New

Hampshire Office of the Attorney General (“AG’s office”), as

provided in the Agreement On Acceptance Of Service, copies of

this order and the complaint (document no. 1). See LR 

4.3(d)(2)(C). Within thirty days from receipt of these

materials, the AG’s office 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 which runs from the AG’s

receipt of these materials. 

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

to receive service on their behalf or whom the AG’s office

declines to represent, the AG’s office 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). 

Case 1:06-cv-00487-SM Document 4 Filed 07/03/07 Page 33 of 34
34

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.

/s/ Justo Arenas 

Justo Arenas

United States Magistrate Judge

Sitting by Designation

Date: July 3, 2007

cc: Darren T. Starr, pro se

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