UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Bryan Bernard

a/k/a Joseph Vaillancourt

v. Civil No. 06-cv-472-PB

William Wrenn, Commissioner,

New Hampshire Department of

Corrections, et al.

REPORT AND RECOMMENDATION

Before the Court is Bryan Bernard’s petition for a writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2254, alleging that

the conditions of his confinement in the New Hampshire State

Prison are so unconstitutional as to require that he be

immediately released from custody and that his sentence be

vacated. The petition is before me for preliminary review to

determine, among other things, whether it states a claim upon

which relief might be granted. See United States District Court

for the District of New Hampshire Local Rule (“LR”) 4.3(d)(2);

Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts. For the reasons discussed herein, I 

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1Plaintiff has another action pending before this Court,

based at least in part on the allegations raised in this

petition, alleging violations of the Americans With Disabilities

Act (“ADA”). See Vaillancourt v. N.H. Dep’t of Corr., et al.,

Civ. No. 06-fp-438 (D.N.H. filed Nov. 12, 2006). In that action,

plaintiff’s counsel filed a motion asserting that, in that case,

plaintiff’s allegation of poverty appears to be untrue, because

plaintiff averred he could not pay the filing fee when, in fact,

he had funds to pay that fee. It is not clear whether the same

would be true in this case. Because I recommend dismissal on

another ground, I decline to address the issue at this time. 

Should Bernard refile, however, he is cautioned to heed the

requirements of seeking in forma pauperis status before this

Court.

2

recommend that Bernard’s petition be dismissed without prejudice

to the refiling of these claims in a civil rights action.

Standard of Review

Under this court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis

untrue,1 the magistrate judge is directed to conduct a

preliminary review and to prepare a report and recommendation

advising the district 

judge whether the action, 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

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(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

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

construes pro se pleadings liberally. See Ayala Serrano v.

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

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

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

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

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

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

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

At this preliminary stage of review, all factual assertions

made by the petitioner and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

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

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

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Background

Bryan Bernard was convicted of drug-related offenses in 2001

and sentenced to three to seven years in prison. After being

released on parole, Bernard violated the conditions of his

release and was returned to the prison. Bernard is now serving

the remainder of his sentence, which expires in March of 2008. 

Bernard has brought this action seeking immediate release from

incarceration and to have his prison sentence vacated because he

allegedly is being denied constitutionally adequate medical care,

conditions of confinement, and opportunities to petition the

government to redress his grievances administratively.

Discussion

Section 2254 confers jurisdiction on this Court to issue

“writs of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court . . . on the ground that he is

in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a). Accordingly,

Bernard must allege that his conviction or sentence violates some

right accorded to him under the federal law or the federal

Constitution. 

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2While this habeas action makes reference to a cause of

action based on the violation of plaintiff’s civil rights under

42 U.S.C. § 1983, plaintiff’s pending case alleging claims under

the ADA does not appear to raise any claims under § 1983. Based

on the allegations raised in the instant petition, it appears

that Bernard may well be able to at least state claims for a

violation of the Eighth Amendment for denial of adequate medical

care, failure to protect, and excessive force as well as claims

that he was denied his First Amendment right to petition the

government for a redress of grievances when he was not permitted

to file request slips. Bernard is free to bring a separate §

1983 action raising these claims or to seek to properly amend the

complaint in his ADA case to add these claims.

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Bernard’s allegations do not point to any constitutional

defect in the conviction or sentence that has resulted in his

confinement. Instead, Bernard complains that the prison

conditions to which he is subjected are so injurious to him that

he should be released. These allegations, even accepted as true,

do not allege a claim that is cognizable in a federal habeas

action. To the extent that Bernard seeks to state a claim

alleging a violation of his constitutional right to humane

conditions of confinement, adequate medical care in prison and to

petition the government for a redress of his grievances, such a

claim must be brought by filing a separate civil rights action

under 42 U.S.C. § 1983.2 Such claims are not properly raised in

a habeas petition, as habeas relief is not available for

challenges to the conditions of a prisoner’s confinement if the

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challenge is unrelated to the fact or length of the prisoner’s

custody. Preiser v. Rodriquez, 411 U.S. 475, 489-99 (1973);

Wolff v. McDonnell, 418 U.S. 539, 554 (1974). Accordingly, I

recommend that this action be dismissed. 

Conclusion

For the foregoing reasons, I recommend that Bernard’s

petition be dismissed in its entirety. Any objections to this

Report and Recommendation must be filed within ten (10) days of

receipt of this notice. Failure to file objections within the

specified time waives the right to appeal the district court’s

order. See Unauthorized Practice of Law Comm. v. Gordon, 979

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

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

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 26, 2007

cc: Bryan Bernard, a/k/a Joseph Vaillancourt, pro se

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