1In addition to Lemere, Philbrook names the following

employees of the Sullivan County House of Corrections as

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

Lockhart, C.O. Heather Murphy, Cpl. Sean Mellish, C.O. McCann

(first name unknown (“FNU”)), C.O. FNU Brookins, C.O. Kenneth

Swain, C.O. John Milliken.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Frank Philbrook

v. Civil No. 08-cv-166-SM

Cpl. Jason Lemere, et al.1

O R D E R

Before the Court is Frank Philbrook’s complaint (document

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

assaulted by a corrections officer, in violation of his federal

constitutional rights, during his April 2005 incarceration at the

Sullivan County House of Corrections (“SCHC”). Because Philbrook

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 District of New

Hampshire Local Rule (”LR”) 4.3(d)(2). As explained herein, I

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find that Philbrook has stated the minimum facts necessary to

assert a claim for relief, and I direct that this action proceed

against defendants at this time.

Philbrook has also filed a motion seeking court-appointed

counsel in this matter (document no. 7). 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

Case 1:08-cv-00166-SM Document 8 Filed 10/20/08 Page 2 of 12
2This action was received in this Court on April 30, 2008. 

Due to the vagaries of mail from the New Hampshire State Prison,

where Philbrook currently resides, I find that the complaint may

well have been mailed prior to the expiration of the three-year

limitations period for this action, and I therefore do not, at

this stage of the proceedings, recommend dismissal on timeliness

grounds.

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

On April 28 and April 29, 2005,2 while Philbrook was

incarcerated at the SCHC, there was a disturbance at that

facility in which Philbrook was involved. Philbrook claims that

during this disturbance, he defended himself by using a mattress

as a shield, and, as a result, was charged with assault. 

Philbrook has been sentenced to the New Hampshire State Prison

for 3-30 years for assault for his involvement in the distubance. 

Philbrook states that during the disturbance, he was

restrained and handcuffed, and was being escorted off of the tier

where the disturbance occurred. While being escorted, Philbrook

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3The claims, as identified herein, shall be considered to be

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

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

must file a motion to amend his complaint.

442 U.S.C. § 1983 provides that:

Every person who under color of any statute, 

4

states that an unidentified officer standing to his right punched

him hard in the side of the head, causing pain and bruising. 

Philbrook claims that the punch could have come from any of the

defendant officers, who were apparently all present, but he

cannot identify which officer actually threw the punch. 

Philbrook asserts that the identity of his assailant would be

revealed by a videotape taken by the Claremont Police Department

and/or in SCHC personnel records relating to the incident, but

that he has not received any response to his attempts to gain

access to those items. Philbrook asserts that in addition to

bruising and pain, he suffered a seizure brought on by the stress

of the punch to his head as well as psychological pain.

Discussion3

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. § 19834; City of Okla. City v.

Case 1:08-cv-00166-SM Document 8 Filed 10/20/08 Page 4 of 12
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

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, Philbrook claims

that defendant SCHC employees are state actors, and that they

violated his federal constitutional right not to be subjected to

cruel and unusual punishment. Philbrook’s action arises,

therefore, under § 1983.

II. Philbrook’s Incarcerative Status

It is unclear from his complaint whether Philbrook was a

pretrial detainee or sentenced inmate at the time the events he

describes occurred. If he was a pretrial detainee, Philbrook’s

action 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). 

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“‘[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

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).

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Prison conditions for sentenced inmates are scrutinized

under the Eighth Amendment, which protects against the infliction

of cruel and unusual punishment. See Farmer v. Brennan, 511 U.S.

825, 832 (1994); Burrell v. Hampshire County, 307 F.3d 1, 7 (1st

Cir. 2002). The Eighth Amendment prohibits any punishment which

violates civilized standards of decency or involves the

“unnecessary and wanton infliction of pain.” Ingraham, 430 U.S.

at 670 (quoting Estelle, 429 U.S. at 97, 102-03. 

The Fourteenth Amendment analysis afforded pretrial

detainees allows for a more expansive recognition of cognizable

claims than the standard applied to convicted inmates. I will

presume, therefore, for purposes of preliminary review, that

Philbrook was a pretrial detainee when the alleged incidents

occurred, and evaluate his claims accordingly. I note, however,

that I would reach the same conclusion under an Eighth Amendment

analysis. I find that Philbrook has alleged a violation of his

right not to be subjected to force during his incarceration that

amounts to punishment. I would find, for purposes of preliminary

review, that Philbrook has also stated facts sufficient to allege

the “unnecessary and wanton infliction of pain” required to state

a violation of the Eighth Amendment. Id.

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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. Philbrook

alleges that the officer who punched him in the head used

excessive force when he did so, because, at the time, Philbrook

was restrained and handcuffed, and therefore posed no threat to

the officers. Other than defending himself by using a mattress

as a shield, Philbrook alleges, he did nothing to provoke an

attack prior to being restrained. Philbrook alleges that because

he was already restrained and handcuffed at the time he was

punched, that force was not applied in order to maintain or

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restore discipline but was applied sadistically and maliciously. 

Accordingly, I find that Philbrook has stated a valid claim for

excessive force in violation of the Fourteenth Amendment against

the officer who punched him. 

IV. The Defendants

Philbrook has named eight corrections officers as defendants

to this action. Philbrook alleges that one officer punched him

in the head. Philbrook is not, at this time, however, able to

identify which of the defendants actually punched him. I presume

that as Philbrook alleges that it could have been any of the

defendants, that all of the named defendants were present at the

time he was punched. 

Upon service of this action on the named defendants,

Philbrook can serve the defendants with interrogatories to obtain

the specific information he needs to determine who punched him,

pursuant to Fed. R. Civ. P. 33(a) which states in pertinent part:

Without leave of court or written stipulation, 

any party may serve upon any other party 

written interrogatories, not exceeding 25 in 

number including all discrete subparts, to be 

answered by the party served or, if the party 

served is a public or private corporation or a 

partnership or association or governmental 

agency, by an officer or agent, who shall 

furnish such information as is available to 

the party. 

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Upon identification of the officer who assaulted Philbrook,

defendants who are cleared of any involvement in the assault by

the discovery materials may make appropriate motions to dismiss. 

I find, therefore, that serving this action on all of the

officers potentially involved, is not overly burdensome, as it is

the defendants themselves who possess the information that will

identify the appropriate defendant to this action.

V. Motion for Court-Appointed Counsel

Philbrook has filed a motion seeking court-appointed counsel

(document no. 7). 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 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, Philbrook has, at this time, failed to establish

the existence of such circumstances. Philbrook’s motion for a

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court-appointed attorney is therefore denied without prejudice to

refiling in the future should circumstances warrant.

Conclusion

For the foregoing reasons, I find that Philbrook 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

Philbrook has completed a single summons form listing all of the

defendants. Philbrook 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 Philbrook,

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 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). 

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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: Frank Philbrook, pro se

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