UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Stephen Miner

v. Civil No. 05-cv-054-JD

Hillsborough County Department

of Corrections, Superintendent

REPORT AND RECOMMENDATION

 Plaintiff Stephen Miner, an inmate at the Hillsborough

County House of Correction (“HCHOC”), petitions for permanent

injunctive relief claiming that his conditions of confinement

violate his constitutional rights and that he has been

discriminated against under Title II of the Americans With

Disabilities Act (“ADA”), 42 U.S.C. § 636(b)(1)(B). An

evidentiary hearing was held on March 24, 2005. At the hearing

both parties agreed on the record that the hearing was a final

hearing on the merits. Mr. Miner waived his non-equity damage

claim. Evidence was taken on the request for injunction. I

find that several claims are moot and recommend that the

remaining claims be denied on the merits. 

Standard For Injunctive Relief

“In order to issue a permanent injunction, a district court

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typically must find that (1) the plaintiff has demonstrated

actual success on the merits of its claims; (2) the plaintiff

would be irreparably injured in the absence of injunctive relief;

(3) the harm to the plaintiff from defendant’s conduct would

exceed the harm to the defendant accruing from the issuance of an

injunction; and (4) the public interest would not be adversely

affected by an injunction.” United States v. Mass. Water Res.

Auth., 256 F.3d 36, 51 N.15 (1st Cir. 2001). 

Background

Miner has been a pretrial detainee since January 11, 2005. 

He claims he has been denied (1) adequate medical care (denial of

medications, denial of dental care, denial of prescription

glasses); (2) access to the courts (attorney contact); and (3)

infringement of his rights under the ADA (denial of out-of-cell

time and recreation). 

1. Adequate Medical Care. 

A pretrial detainee is protected by the Eighth Amendment

against deliberate indifference to serious medical needs. 

Estelle v. Gamble, 429 U.S. 97, 104 (1976). Plaintiff complains

about denial of (a) dental care; (b) prescription glasses; and

(c) prescribed drugs (dilantin and methadone). 

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a. Dental care. 

Plaintiff testified that he had been requesting emergency

dental attention for well over a month. He testified that he had

immediate needs due to tooth chipping and to tooth decay. The

latter he says results from his medications. At the hearing he

displayed a tooth which he testified he had to pull himself

because of lack of treatment. The progress note (Exhibit #1) of

February 13, 2005 supports the fact that (1) the “tooth was

rotten”, (2) “his teeth are all in bad condition” and (3) he

“(h)as been on dental list since 1/27/05". 

He requested emergency dental treatment on 1/26/05. The

response on the request slip of 2/1/05 notes he “need(s) teeth

pulled desperately.” Exhibit 1. The nurse acknowledged

plaintiff’s dental needs at the hearing but stated that he, in

fact, had been scheduled to see the dentist on the date of the

hearing and that his dental care would be given. Defendants

represent that they are now addressing his dental needs. 

I recommend that the injunction as to dental needs be denied

for two reasons: (1) the complaint does not contain any

allegations as to inadequate dental care and (2) however delayed,

he is now getting dental treatment and the issue is moot. 

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b. Prescription glasses. 

When plaintiff filed his suit he did not have his

prescription glasses. By February 1st or 4th plaintiff received

new prescription glasses in response to his request slip. He is

not entitled to an injunction with regard to glasses as they were

provided. I recommend that the injunction be denied as moot with

respect to glasses. 

c. Prescribed drugs. 

(1) Dilantin

Again, when suit was filed, plaintiff was not receiving

dilantin to control seizures. He appears to have had one

undocumented seizure. When his “outside” prescription for

dilantin was confirmed, he immediately received dilantin. He

continues to receive it. The issue is moot and I recommend that

the injunction be dismissed as to the dilantin issue. 

(2) Methadone 

There is no question that in the past plaintiff was in a

very serious automobile accident which left him with very serious

residual medical problems. The nurses have recognized his pain

and, consistent with Dr. Ward’s orders, have administered

Tylenol. Plaintiff demonstrated that he had a prescription for

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Methadone from “outside” physicians. 

The testimony is clear that the defendant in this case has

not denied him methadone. That decision was made solely by Dr.

Ward who is not a defendant in this case. Dr. Ward is not before

the court and, on the evidence, plaintiff has failed to prove his

claim against Superintendent O’Mara. I recommend that the

methadone claim be denied. 

2. Access to the courts. 

Plaintiff alleged and testified that because the medical

area cells are in the same area as the maximum security cells he

is subject to 23 hour per day lock-down and that his time

out-of-cell was at midnight or one in the morning. As a

consequence he claims that he could not have telephone contact

with his attorney. Defendant’s Exhibit A is a detailed phone log

of calls using plaintiff’s exclusive “pin” number. It thoroughly

demonstrates that there is no longer any basis to this claim. 

Furthermore, plaintiff admitted that he no longer had any problem

with access to his attorney and that he did not suffer any

adverse consequence. 

I recommend that this claim be denied as moot. 

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3. Infringement of his rights under the ADA. 

Plaintiff must use a wheelchair. Because of his dependence

on the wheelchair and his other medical needs, he is housed in

the medical pod which also houses some higher security prisoners

assigned to this medical pod. As a consequence there are

frequent lock-downs and, unlike general population, virtually no

recreational facilities and little recreational time. 

Plaintiff admits that he gets four to five hours of

out-of-cell time per day (interrupted by lock-downs). He gets

the same time out-of-cell as general population except for those

interruptions. However, there is no other medical unit and

everyone in it who has the same general population classification

is subject to the same impingement on out-of-cell time. 

He is not entitled to the same privileges or housing as

sentenced prisoners who have achieved work release status. Many

parts of his wheelchair could be converted to weapons. The

medical pod is much less crowded and accessible by wheelchair. 

He is on seizure watch. He is required to be on the medical pod

for medical, safety and security reasons. It is clear that he

enjoys the fullest benefits of that pod and is not discriminated

against because of his disability. 

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I recommend that the injunction be denied and the case

dismissed. 

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: May 12, 2005

cc: Stephen Miner, pro se

 John A. Curran, Esq.

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